Somesh @ Somnath Sukhdeo Bomble And ... vs The State Of Maharashtra
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Bombay High Court

Somesh @ Somnath Sukhdeo Bomble And ... vs The State Of Maharashtra on 26 February, 2025

2025:BHC-AUG:5407


                                         -1-                   Cri Appeal No. 956.2023

                        IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                                   BENCH AT AURANGABAD

                                CRIMINAL APPEAL NO. 956 OF 2023


                1.    Somesh @ Somnath S/o. Sukhdeo Bomble,
                      Age : 27 Years, Occu. : Agril,
                      R/o. Karjule Pathar, Tq. Sangamner,
                      Dist. Ahmednagar.

                2.    Shubham S/o. Pandurang Gunjal,
                      Age : 24 Years, Occu. : Driver,
                      R/o. Karjule Pathar, Tq. Sangamner,
                      Dist. Ahmednagar.

                3.    Shubham S/o. Sukhdeo Bomble,
                      Age : 26 Years, Occu. : Private Job,
                      R/o. Karjule Pathar, Tq. Sangamner,
                      Dist. Ahmednagar.
                      Presently Residing at Dalvai Nagar,
                      Katraj, Pune, Dist. Pune.                     ..... Appellants



                      VERSUS


                The State of Maharashtra
                Through Police Station Officer,
                Ghargaon Police Station,
                Ghargaon, Tq. Sangamner,
                Dist. Ahmednagar.                                 .....   Respondent
                                         .....
                Advocate for Appellant : Mr. Satyajeet S. Bora
                APP for Respondent-State : Mr. S.S. Dande
                Advocate for Respondent No.2 : Mr. Jitendra S. Jain (Appointed)
                                         .....


                                         CORAM : ABHAY S. WAGHWASE, J.

                                        RESERVED ON   : 10th February, 2025
                                        PRONOUNCED ON : 26th February, 2025
                            -2-                   Cri Appeal No. 956.2023

JUDGMENT :

1. By instant appeal, convicts take an exception to the

judgment and order dated 05.09.2023, passed by District Judge-2,

and Additional Sessions Judge, Sangamner in Sessions Case No.76 of

2019, for offence under Sections 353 and 323 read with 34 of the

Indian Penal Code, 1860.

IN NUTSHELL, CASE OF THE PROSECUTION IS AS UNDER :

2. That, on 11.06.2016, informant was working as a bus

conductor of a bus which was travelling from Sangamner to Sakur. He

was issuing ticket on the payments for travelling. One passenger

demanded ticket and paid only Rs.44/-, even when the journey

charges were Rs.46/-. When Rs.2/- were demanded, it is alleged that

the appellants beat the informant. Therefore, he lodged report with

Ghargaon Police Station, resulting into registration of crime bearing

No.53 of 2016, for offence under Sections 353, 323, 504, 506, 427

read with 34 of the Indian Penal Code, 1860.

3. The said crime was investigated by Police Constable

Mr. Gorkshanath Shinde and after gathering sufficient evidence, he

filed charge-sheet against the appellants. The appellants were tried by

District Judge-2, and Additional Sessions Judge, Sangamner vide

-3- Cri Appeal No. 956.2023

Sessions Case No.76 of 2019, who, on appreciation of oral and

documentary evidence, recording guilt of the appellants for offences

under Sections 353 and 323 read with 34 of IPC.

4. Feeling aggrieved by the same, the appellants have

challenged above judgment and order by filing instant appeal on

various grounds mentioned in the appeal.

SUBMISSIONS

ON BEHALF OF THE APPELLANTS :

5. Learned counsel for the appellants submitted that, the

appellants were charge-sheeted by Ghargaon Police Station, Tq.

Sangamner, Dist. Ahmednagar and they have been held guilty by

learned District Judge-2, and Additional Sessions Judge, Sangamner

in Sessions Case No.76 of 2019, for above offences. Learned counsel

pointed out that, case is based only on evidence of three witnessess

i.e. informant, one eyewitness and investigating officer. He further

pointed out that, there are allegations of obstruction in duty of the

informant, who was said to be conductor. Rather there is delay

reporting, even the appellants have been implicated on the statement

of one witness i.e. PW2 Dattatraya Vasantrao Waman, Bus Driver,

who was not known to the appellants and has merely identified in

-4- Cri Appeal No. 956.2023

first time in the court. That, on the basis of said evidence, learned

trial court has accepted the prosecution case.

6. Learned counsel further pointed out that, PW1 Mr. Kisan

Shrihari Ghumre, informant, himself in cross-examination, has

admitted that name of the appellants was allegedly informed by one

of the passenger and he learnt from police that the present appellants

are the same person. Therefore, according to learned counsel, with

such quality of evidence, learned trial court ought not to have held

the appellants guilty and hence, he seeks indulgence.

7. Learned counsel seeks reliance in case of Jayan Vs. State

of Kerala, reported in (2021) 20 SCC 38.

ON BEHALF OF THE RESPONDENT-STATE :

8. Learned APP opposed on the ground that, there is cogent,

convincing and reliable evidence. That, investigation has been carried

out. That, taking the testimony of the informant and independent

witness, case of prosecution is accepted and hence, according to him,

there is no infirmity in the appreciation or reasoning assigned by

learned trial court while convicting the appellants. Consequently, he

prays to dismiss the appeal.

-5- Cri Appeal No. 956.2023

9. Learned counsel for the original complainant also

opposed on above similar grounds as put forth by learned APP.

EVIDENCE BEFORE THE TRIAL COURT :

10. In support of its case, the prosecution has examined in all

three witnesses. Their role and status and the sum and substance of

their evidence can be summarized as under :

PW1 Informant Mr. Kisan Shrihari Ghumare. In his substantive evidence at Exh.14, he narrated as under :

"1. I have been working as a bus conductor at Sangamner depot since 2014. The incident took place on 11 th June 2016. On that day, I was on duty as a conductor on a bus going from Sangamner to Sakur. Dattatreya Vaman was working as the driver on that bus that day. That day, our bus left the depot around 2.30 p.m. I was giving tickets to the passengers in the bus. Then a passenger demanded 2 tickets to go to Sakur. The total amount of their tickets was Rs.46/-. But those two students gave me only Rs.44/-. So I asked them for the remaining two rupees. Those students told me to give them Rs.2 /-.

2. Later, when our bus reached Sakur, some passengers got off the bus. At Sakur, some people boarded the bus and beat me up. The beating was for returning the Rs.2/- for the ticket. Three to four people kicked me on the chest and face with sticks. During the beating, my ticket machine fell down and my shirt was torn. Rs.893/- in my pocket fell out and went

-6- Cri Appeal No. 956.2023

missing. The students in the bus who had given me Rs.2/- less than the ticket were also involved in that beating. The passengers learned the name of one of the people who beat me up, his name was Somnath Bombale. All three accused sitting in the court had kicked me up that day. Therefore, I went to Ghargaon Police Station and filed a complaint about the incident. The accused had obstructed the government work I was doing. The first complaint I filed has my signature on it. The mark is 15. The police had sent me to the doctor for treatment."

PW2 Mr. Dattatraya Vasantrao Waman (Eye Witness). He, in his substantive evidence at Exh.17, stated as under :

"1. I have been working as a driver in ST Corporation since 2012. On 11th June 2016, I and the complainant were doing government work in a bus near Sakur. The complainant was the conductor on that bus at that time. That day, our bus left from Sangamner at 2.30 pm to go to Sakur. Our bus reached Sakar Phata. Then 2-3 passengers in the bus also boarded the bus. Those people started beating the conductor. Those people kicked the complainant in the face and chest and the complainant's ticket machine broke in that beating. I and the other people resolved the fight. One of the people who beat him that day was named Bombale. Today I saw three accused.

2. Later, when our bus reached Sakur, some passengers got off the bus. At Sakur, some people boarded the bus and beat me up. The beating was for returning the Rs.2/- for the ticket. Three to four people kicked me on the chest and face with sticks. During the beating, my ticket machine fell down and my

-7- Cri Appeal No. 956.2023

shirt was torn. Rs.893/- in my pocket fell out and went missing. The students in the bus who had given me Rs.2/- less than the ticket were also involved in that beating. The passengers learned the name of one of the people who beat me up, his name was Somnath Bombale. All three accused sitting in the court had kicked me up that day. Therefore, I went to Ghargaon Police Station and filed a complaint about the incident. The accused had obstructed the government work I was doing. The first complaint I filed has my signature on it. The mark is 15. The police had sent me to the doctor for treatment."

PW3 Mr. Gorakshnath Sayaji Shinde, Police Constable, Ghargaon Police Statoin. In para.1 of his substantive evidence at Exh.20, he narrated as under :

"1. In the year 2016, I was posted as a police constable at Ghargaon Police Station. I had investigated the Cr. Reg. No.53/2016. It was related to section 353 of the IPC. While investigating the crime, I first went to the scene of the incident and prepared a scene report in front of the magistrate. The scene of the incident was near Sakur Phata on the Nashik Pune Highway. That scene report is on Exhibit No.18. Later, I recorded the statements of the witnesses. During my investigation, I found that the accused had beaten me with kicks and punches due to an argument with the S.T. conductor/plaintiff, so I filed a charge-sheet, all three accused are present in the court."

(Evidence of PW1 to PW3 is translated by Senior Translator, High Court of Judicature at Bombay, Bench at Aurangabad).

                           -8-                     Cri Appeal No. 956.2023

                                ANALYSIS

11. Re-appreciated the evidence of all above witnesses.

12. It is emerging that that present crime on the basis of

report lodged by informant PW1 Mr. Kisan Ghumre and he claims

that, on 11.06.2016, when he was officiating as a conductor in a bus

travelling from Sangamner to Sakur, one passenger demanded ticket

and price of journey was Rs.46/-. However, he was given Rs.44/-

only. When he demanded further Rs.2/-, it is alleged that, the student

assured to pay later on, but subsequently, on demanding the same,

PW1 Kisan was pulled down and given beating.

13. On above report, Ghargaon Police seems to have

registered above crime. However, as pointed out and on going

through the cross of informant PW1 Kisan, he has admitted that, he

learnt the name of person beating from one of the passenger and it is

the police who showed him to be person assaulting him. Therefore,

taking above testimony into consideration, it is clear that, identity of

the appellants is not got confirmed through police machinery after

arrested by conducting T.I. parade.

-9- Cri Appeal No. 956.2023

14. PW2 Mr. Dattatraya Waman, eyewitness, also seems to

have deposed about identifying the present appellants for the first

time in the court.

15. Learned counsel for the appellants has rightly relied upon

the ruling of the Hon'ble Apex Court in case of Jayan (Supra),

wherein the Hon'ble Apex Court held that, the identification by a

witness of the accused in the Court who has for the first time seen the

accused in the incident of offence is a weak piece of evidence

especially when there is a large time gap between the date of the

incident and the date of recording of his evidence.

16. Remaining witness is investigating officer PW3

Mr. Gorakshnath Shinde. His evidence is formal one. PW3 Mr. Shinde

deposed that, he investigated the crime and prepared spot

panchanama and on completion of investigation, filed charge-sheet

against the appellants for above offence.

17. Taking the above material into consideration, it is a fit

case for extending benefit of doubt. Hence, the appeal deserves to be

allowed. In the result, following order is passed.

                            -10-                       Cri Appeal No. 956.2023

                                   ORDER


      I)     Criminal Appeal stands allowed.

      II)    The conviction awarded to appellant i) Somesh @

Somnath S/o. Sukhdeo Bomble, ii) Shubham S/o. Pandurang Gunjal and iii) Shubham S/o. Sukhdeo Bomble, in Sessions Case No.76 of 2019, by learned District Judge-2, and Additional Sessions Judge, Sangamner on 05.09.2023, for offence under Sections 353 and 323 read with 34 of the Indian Penal Code, 1860, stands quashed and set-aside.

III) The appellants stands acquitted of the offence punishable under Sections 353 and 323 read with 34 of the Indian Penal Code, 1860.

IV) The bail bonds of the appellants stand cancelled.

V) The fine amount deposited, if any, be refunded to the appellants after the statutory period.

VI) It is clarified that there is no change as regards the order in respect of disposal of muddemal.

VII) Fees of learned Advocate, who is appointed to represent the cause of respondent No.2 is to be paid by the High Court Legal Services Sub-Committee, Aurangabad as per rules.

[ABHAY S. WAGHWASE, J.]

asd