Bombay High Court
The State Of Mah vs Naval Sukdev Gharate And Anr on 23 July, 2025
2025:BHC-AUG:19156
-1-
Cri-Appeal-639-2005
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
CRIMINAL APPEAL NO. 639 OF 2005
The State of Maharashtra
Through Pimpalner Police Station,
Taluka Sakri, District Dhule. ... Appellant
[Ori. Informant]
Versus
1. Naval Sukdev Gharate,
Age 35 years,
2. Madhukar Sukdev Gharate,
Age 34 years,
[Appeal is abated against
Respondent No.2 vide order
dated 27.02.2025]
Both R/o. Samode, Taluka Sakri,
District Dhule. ... Respondents
.....
Mr. N. D. Batule, APP for the Appellant State.
Mr. A. S. Sawant, Advocate for the Respondent No.1.
.....
CORAM : ABHAY S. WAGHWASE, J.
Reserved on : 15.07.2025
Pronounced on : 23.07.2025.
JUDGMENT :
1. The appellant - State takes exception to the judgment and
order passed by IInd Ad-hoc Additional Sessions Judge, Dhule dated
29.04.2005 in Sessions Case No. 100 of 2003, which was tried against
accused respondents herein for commission of offence punishable under
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sections 447, 324, 323, 504, 506 read with section 34 of Indian Penal
Code.
FACTUAL MATRIX
2. In brief case of prosecution in trial court is that, informant
Amit, an agriculturist had been to the field on 11.02.2002 along with his
brother Bhushan. That time, accused no.1 Naval committed criminal
trespass and also issued threats by questioning why water was not given
to his land and issued threats to cut his legs. Shortly thereafter, accused
no.2 Madhukar also committed trespass. He initially abused informant,
threw chilly powder in the eyes of both, informant and Bhushan, and
thereafter both of them indulged in beating informant and Bhushan by
means of fist and kicks blows and stone causing bleeding injuries.
Agriculturist labour Madhukar intervened, but he was also given
thrashing. Accused also pushed informant and snatched his gold chain.
Police was approached, who referred them to hospital and on report
lodged by informant, crime was registered vide complaint at Exh.27.
PW7 Ahire carried out investigation and after gathering sufficient
evidence, charge-sheeted accused and accused persons were made to face
trial before IInd Additional Sessions Judge, Dhule, who after appreciating
oral and documentary evidence and after hearing both sides, acquitted
both the accused, resulting into instant appeal.
Cri-Appeal-639-2005
SUBMISSIONS
3. Sum and substance of arguments advanced by learned APP
is that, prosecution has examined informant as well as his brother
Bhushan. That, both of them assaulted that day. That, they both were
referred to hospital and were examined by PW4 Dr. Mangesh Barde, who
treated them, issued injury certificates and even stepped into the witness
box at Exh.36. Learned APP submits that, along with the evidence of
such witnesses, there was evidence of Investigation Officer and panchas,
but the same has not been appreciated. That, no cogent reasons are
assigned for disbelieving the prosecution evidence. He pointed out that,
when injured themselves have testified about the events of abuse,
throwing chilly powder and assaulting both of them, which was finding
support from medical expert's evidence, case of prosecution ought to
have been held as proved. That, prosecution had discharged its primary
burden. Learned trial Judge erred in acquitting the accused in spite of
availability of such quality of evidence and hence he urges for
interference by allowing the appeal.
4. Learned counsel for accused supported the judgment of
acquittal and finding two points that, firstly, there is previous enmity and
secondly, there is delayed FIR and even delayed medical examination
rendering the case of prosecution doubtful. He also pointed out that
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witnesses are not consistent. Hence, learned counsel urges to dismiss the
appeal for want of merits.
EVIDENCE BEFORE THE TRIAL COURT
5. Prosecution has, in support of its case, examined in all seven
witnesses. Their role and status and the relevant portion of their evidence
is as under :
PW1 Amit Kharote is the informant. He is examined at Exhibit 26
wherein he deposed that;
"1. I have agricultural land bearing Gat No. 590 at village
Samode, Taluka Sakri, District : Dhule. My said agricultural land is
in the name of my mother. Our Saldar by name Madhukar Uttam
Mali and Shivdas Rama Bagul used to look after our agricultural
land.
2. On 11/2/2002 at about 3-00 p.m. I and my brother Bhushan
Chandrakant Kharote had gone to our land. At that time out
Saldar Madhukar and Shivdas were working near well fitting of
pipes for giving water to onion crop. At that time accused no.1
Naval Sukdev Gharate committed criminal trespass in our
agricultural land. Accused No. 1 Naval shouted and threatened to
us that we should not give water in his land. At that time, I said to
accused no.1 Naval that, my father had entered deed of agreement
to sale of said land, with elder brother of accused no.1 by name
vasant Sukdev Gharate. Vasant Sukdev Gharate had agreed to sell
Cri-Appeal-639-2005
said agricultural land, in which we were fitting pipes for watering
onion crop for consideration amount of Rs.60,000/- to my father.
Accused no.1 Naval threatened to us that if we should try to give
water to onion crop, then he should cut our legs. We were
cultivating said agricultural land since 1997.
3. Thereafter accused no.2 Madhukar Sukdeo Gharate came
there. He committed criminal trespass in our land. Accused no.2
abused to us. Accused no.2 Madhukar threw chilly powder of his
hand faces of me and my brother Bhushan Chandrakant Kharote.
Said chilly powder entered in our eyes. Itching irritated. Both
accused beat me and Bhushan with fists and kicks. Accused no.1
Naval Sukdev Gharate took stone in his hand and gave blow of
said stone on my left ear. At that time accused no.2 Madhukar
gave blow of fists on the mouth of my brother Bhushan
Chandrakant Kharote. Bhushan received bleeding injury on his
lips. At that time our Saldar Madhukar Uttam Mali tried to
intervene. At that time both accused beat Madhukar Mali with fists
and kicks. Both accused threatened to Madhukar Mali to kill him.
At that time of quarrel due to push and pulling, my golden chain
fell on the ground. Thereafter we did not find it. Another Saldar
Shivdas Bagul came there. Both accused threatened to Shivdas
Bagul to kill and to cut his hand. As we frightened, I, Bhushan,
Madhukar Mali and Shivdas Bagul ran towards our motorcycle.
Thereafter I, Madhukar Mali and Bhushan went to Pimpalner
police station on our motorcycle. Police gave memo to us. We went
to Rural Hospital, Pimpalner. Prior to going to hospital, I gave
complaint to police against both accused. Police reduced into
writing my complaint as per my say. Now my complaint is shown
Cri-Appeal-639-2005
to me. It bears my signature. Contents are true and correct. It is at
Exh. 27. At the time of incident I had worn check shirt of orange
colour. Now shirt at article no.3 shown to me is the same. If a
stone by which accused no.2 Madhukar beat me, will be shown to
me, I will identify it. Now stone at article no.2 is shown to me is
same, by which accused no.2 Madhukar beat me. Blood was oozed
from my left ear and fell on my shirt. Both accused present before
court are same. I produced my above said shirt in Pimpalner police
station in presence of 2 panchas."
PW2 Deepak Bhamare has acted as pancha to spot panchanama Exhibit
29. In his evidence at Exhibit 28, he deposed as under :
"1. On 12/2/2002 police called me in Samode Shivar.
Purushottam Korade was another pancha alongwith me.
Complainant Amit Kharote showed spot of incident to we panchas
and police. We saw that onion crop was crushed under feet. One
plastic bag containing chilly powder was lying on the ground in
said onion crop. Said plastic bag was opened. Chilly powder was
scattered in the said crop on the ground. Complainant Amit
showed said chilly powder, plastic bag and one stone lying on the
ground, to us. Police collected said chilly powder along with earth,
and said stone. Police seized said chilly powder alongwith earth in
our presence. Police wrote which they and we saw. Police obtained
our signatures on said writing. Now spot panchanama is shown to
me. It bears my signature. We panchas put our signatures on spot
panchanama after reading it. Contents of said spot panchanama
was true and correct. Said panchanama is at Exh.29."
Cri-Appeal-639-2005
PW3 Rupchand Chaure acted as pancha to seizure panchanama Exh.34.
PW4 Mangesh Barde is the Medical Officer, who examined Amit,
Madhukar and Bhushan. In his evidence at Exhibit 36, he deposed
as under :
"1. On 11/2/2002 I was on duty in Rural Hospital as Medical
Officer at Pimpalner. On that day at 4-45 p.m. injured Amit
Traymbakrao Kharote age 24 years, r/o Pimpalner came in
hospital. I examined him. I found following injuries on his person :
1) Abrasion on left external Pinna of left ear size 2 x 1 cm
bleeding was present.
2) Abrasion in front of tragus of left ear size about 1 cm.
3) Blunt trauma on nail bed of left middle finger.
Patient was complaining of itching of eyes and face.
Accordingly I issued medical certificate of said patient. Probable
weapon used blunt object. Nature of injury simple. Age of injury
within one to two hours. Now medical certificate of patient Amit
Kharote shown to me. It is same. It bears my signature and stamp
and seal. Its contents are true and correct. It is at Exh. 37.
2. On very day I examined Madhukar Uttam Mali at 4-50 p.m. I
found following injuries on his person :
1) Swelling with abrasion on forehead on right side. Size of
swelling 2 cm x 2 cm size of abrasion less than 1 cm.
2) Blunt trauma on left sub postal region, tenderness was
present.
Cri-Appeal-639-2005
3) Blunt trauma on right scapular region. No contusion but
tenderness present.
Probable weapon used hard and blunt object. Nature of
injures simple. Accordingly I issued medical certificate of patient.
Now it is shown to me. It bears my signature and stamp and seal.
Its contents are true and correct. It is at Exh. 38.
3. On very day I examined Bhushan Chandrakant Kharote at 4-
50 p.m. I found following injuries on his person :
1) Cut wound on lower lip. Swelling present, bleeding present,
size of cut 1 cm x less 0.5 c.m.
2) Blunt trauma on abdomen left illiac region. There were no
contusion.
3) Blunt trauma near right anterior superior illiac spine. No
contusion, tenderness present.
Probable weapon used hard and blunt object. Nature of injuries
simple. Age of injuries within 1 to 2 hours. Accordingly, I issued
medical certificate to patient. Now it is shown to me. It bears my
signature and stamp and seal. Its contents are true and correct. It
is at Exh. 39. It is true that itching of eyes and face possible if any
person throws chilly powder on the eyes and face of patient. It is
true that injuries at serial no.1 and 2 of medical certificate of Exh.
37 are possible if any person beat patient with stone, which is now
shown to me. Said stone is at article no.2. Injury at serial no.3 of
above said certificate at Exh. 37 is possible if it is caused by hard
and blunt object like stone. It is true that injuries mentioned in
Cri-Appeal-639-2005
medical certificate Exh. 38 and 39 are possible due to stone, which
is at article 2."
PW5 Bhushan Kharote deposed at Exhibit 40 as under :
"1. Before two years, I am studying B.A. My uncle Kashinath
Kharote was working as Asstt. Forest Conservator. Traymbakrao
was residing in Shradhanjali Apartment Pimpalner. I know Vasant
Sukdeo Gharate r/o. Samode. In the year 1997 Traymbak Kharote
executed deed of agreement to sale in respect of land of Vasant
Gharate for the consideration amount of Rs.91,000/- Tryambak
Kharote paid amount of Rs.60,000/- by cheque as out of said
consideration amount of Vasant Gharate. Said deed of agreement
to sale was executed on stamp. Madhukar Mali and Shivdas Rama
Bagul both Saldars of Traymbak used to work in the agricultural
land of Tryambak as Saldars.
2. On 11/2/2002 I and Amit went to agricultural land of
Tryambak Kharote, for giving water to onion. Saldars of Tryambak
Kharote, Madhukar Mali and Shivdas Bagul were fitting pipes to
give water to onion crop. Both accused present before court came
there at 3-00 to 3-30 p.m. Both accused were abusing. Both
accused said to us that we should leave that place. Said
agricultural land was owed by both accused. We should not give
water to onion crop. Accused no.2 Madhukar Gharate took chilly
powder from the pocket of his pant. Said chilly powder was in
plastic bag. Madhukar Gharate threw said chilly powder on the
faces of me and Amit. Chilly powder went into eyes of myself and
Amit. Our eyes were itching. We rubbed our eyes. We did not see
Cri-Appeal-639-2005
anything for 12 to 15 seconds. Madhukar Gharate gave 2 to 3
blows of hand fist on my lips. At that time accused no.1 gave blow
of stone on left ear of Amit. Blood oozed from bleeding injury of
ear of Amit. At that time our saldar Madhukar Mali came there.
Madhukar Mali, our saldar tried to rescue us. At that time
Madhukar Gharate hit Madhukar Mali on the ground. Our another
saldar Shivdas Bagul came there. He tried to rescue us. Both
accused beat Shivdas with fists and kicks. We frightened and ran
towards road. Then after, I, Amit and Madhukar Mali went to
Pimpalner police station. Amit gave complaint to police. We took
memo and went to Government hospital at Pimpalner. Both
accused present before court are same. Now stone which is at
article no.2 is shown to me, by which accused no.1 Naval gave
blow of said stone to left ear of Amit. I had worn full open shirt of
white colour having strips, at the time of incident. Now shirt which
is at article no.4 is shown to me is same. Which I had worn at the
time of incident."
PW6 Nanaji Gharate acted as pancha to arrest panchanama Exhibit 48.
PW7 Garibdas Ahire, Police Head Constable, is the Investigating Officer.
ANALYSIS
6. State has pressed into service ground that there is convincing
and legally acceptable evidence of PW1 Amit and PW5 Bhushan, who are
consistent and moreover, prosecution has examined the treating doctor
for the injuries suffered by informant.
Cri-Appeal-639-2005
7. On complete and meticulous re-appreciation, evidence of
informant PW1 Amit and his brother PW5 Bhushan is crucial. On visiting
Exh.26, it is noticed that, according to informant, accused No.1 Naval
after committing criminal trespass issued threats to kill and gave fist and
kicks blows both, PW1 Amit and PW5 Bhushan. Further according to him,
fist and kick blows were also showered on Madhukar Mali and stone was
hit on his left ear. Whereas, regarding role of accused No.2 Madhukar is
concerned, PW1 Amit testified about hurling abuses, throwing chilly
powder in the eyes of both, PW1 Amit and PW5 Bhushan, followed by
giving fist blows on PW5 Bhushan as well as Madhukar Mali.
8. On visiting evidence of PW5 Bhushan as regards to accused
no.1 is concerned, allegations are of abuse and hitting stone blow on the
left ear of PW1 Amit and giving kicks and fist blows to Shivdas. As
regards to accused no.2 Madhukar is concerned, this witness PW5
Bhushan alleged that, he abused him, throwing chilly powder and giving
fist blow on him as well as making Madhukar Mali fall on the ground and
kicks and fist blows given to Shivdas.
9. On visiting their cross, it is emerging that, previous enmity
admitted by both PW1 Amit and PW5 Bhushan. PW1 Amit attributed fist
Cri-Appeal-639-2005
and kick blows to Madhukar Mali, but such person is not examined. PW1
Amit in his cross has admitted about not reporting police about accused
no.2 making Madhukar Mali fall on the ground. PW5 Bhushan in his
cross stated that, accused no.1 Naval flung stone on the left ear of Amit
i.e. PW1. In para 4 he stated that a stone by which accused no.1 hit PW1
was just like the stone Article 2 and he further candidly admitted that he
cannot definitely state by which stone his brother was hit. Omission is
brought in his cross about Madhukar Mali coming to rescue and both
accused showering fist and kick blows on Shivdas. Omissions and
variance are proved through the Investigating Officer in paragraph 3 and
4 of the cross. Investigating Officer also admitted in cross about not filing
injury certificate of accused no.2. Another noticeable variance is
regarding PW1 Amit testifying about losing gold chain during pushing
and scuffling regarding which PW5 Bhushan has not uttered a word.
10. Thus, here, previous animosity is coming on record, only
PW1 Amit and PW5 Bhushan are examined and crucial and independent
witnesses like Madhukar and Shivdas are not examined for the best
reasons known to the prosecution. It is trite at law that, when there is
previous animosity and witnesses are related, there has to be
corroboration from independent corner, however, here independent
witnesses are not examined.
Cri-Appeal-639-2005
11. Perused the judgment under challenge. The learned trial
Judge has dealt with each and every aspect put-forth by prosecution in
trial court. In the light of above stated weakness of prosecution case,
learned trial court was left with no other alternative, but to hold evidence
of prosecution unworthy of credence. There is no infirmity in the
findings. Bearing in mind the law while dealing with appeal against
acquittal and as this court does not find any patent perversity to interfere,
appeal deserves to be dismissed. Hence, the following order is passed :
ORDER
The appeal is hereby dismissed.
(ABHAY S. WAGHWASE, J.)
Tandale
