1 FARAD CONTINUATION SHEET No. IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE, BENCH AT AURANGABAD CRIMINAL APPLICATION NO.3000 OF 2009 Office Notes,Office Memoranda of Coram,appearances, Court's orders or directions and Registrar's orders Court's or Judge's orders 1. Heard Shri B.V.Wagh, A.P.P. for the applicant. No one present for the respondent. 2. This is an application for leave to file appeal against the order of acquittal passed by the Adhoc Additional Sessions Judge-II, Osmanabad in Special Case No.14 of 2009 decided on 7.8.2009. 3. The Respondents were tried for offences punishable under Sections 147, 148,324, 323, 504, 506 read with Section 149 of I.P.C. and under Section 3(1)(10) of the Scheduled Caste and Scheduled Tribe (Prevention of 2 Atrocities) Act and under Section 135 of the Bombay Police Act. In all 17 persons were put on trial. 4. Briefly stated, on 2.5.2004 complainant Tatyasaheb Samnbhaji Sarwade lodged complaint with Rural Police Station, Osmanabad that he resides with his two sons and two daughters at village Walgud, Taluka and District Osmanabad and that he does labour work. 5. On 2.5.2004 between 6.30 to 7.00 a.m. in front of temple of Vitthal Rukhmini a water tanker had been brought for supply of water to the people. All villagers had gathered for getting water. At that time Pooja, daughter of the complainant, went to the tanker for water. Accused Prakash Eknath Bhong, who was present near the water tanker, told her not to take water and held her hand. The complainant Tatyasaheb asked accused Prakash to release the hand of his daughter and allow her to take water. 3 At that time, accused is alleged to have said that "Mahars" should not come to take water. At that time, accused Jagan Apparao Bachute gave a blow of water pot on the head of the complainant and caused injury to him. It is alleged that accused Nos. 1,6,7,9,10,11,12,13,14,16 and 17 and other ten persons came there and they beat Tatyasaheb with iron bars and chain. Accused No.17 Bharat Eknath Bhong gave blow to complainant with stick. Thereafter accused persons entered the houses of the persons belonging to the Scheduled caste and beat Sachin Bharat Sarwade, Shankar Arjun Gharbudve, Pravind Nivratti Nagtilak, Pramod Harisdas Sarvade, Santosh Bharinth Bansode, Shardabai Arjun Gharbudve, Savita Ravindra Nagtilak,Shamal Apparao Bidbag and said that Mahars had become arrogant and they be put in houses and set on fire. All accused are said to have beaten the persons named above and caused serious injuries to them. It is also alleged that the accused have told that 4 these persons should not be allowed to come on work in agricultural fields and take water. Thereafter complaint was filed, crime was registered and charge-sheet was filed. 6. In all, 13 witnesses were examined. The learned Judge has considered the evidence of each of the witnesses very carefully and in details. He has considered omissions and exaggerations made by the witnesses. The judge noted that the complainant did not state in the complaint that accused No. 1 said that Mahars have become arrogant or that they should not take water. It is also said that there are certain improvements over the complaint. There is a detail discussion on all the aspects. Though it is stated that accused Nos. 3 to 14 and 16 had beaten the complainant with iron bars, sticks and chains, it is not stated as to which accused used which weapon. 5 7. PW-4 Dr.Lalita Swam (Exh.104) deposed that on 2.5.2004 when she was working as Medical Officer, Civil Hospital, Osmanabad, three ladies and the complainant were referred to her at about 9.00 a.m. by Rural Police Station, Osmanabad. She examined complainant and found following three injuries on his person. (i) Abrasion on left side of the head, of 3x2 cm size. (ii) CLW of 3x1x1/2 cm on left side of the head. (ii) Abrasions of 4x1 cm size on both shoulders. PW 12 Dr.Lalita stated that all injuries were simple in nature and caused within six hours. There was no injury to any one else. So, it is very clear that the complaint is very exaggerated. There is no Medical Certificate of any one except Tatya. 08. PW-6 Pramod Haridas Sarwade stated that he received bleeding injury, but 6 there is no bleeding injury to him at all, nor there is any evidence that he weas sent to doctor for treatment. Same is the case with PW-7 Sachin Sarwade, who deposed that he was severely beaten with sticks and stones, but it is clear that he had no injury. 09. After carefully going through the judgment, in my opinion, the view taken by the learned Judge is proper. It is alleged that several people had gathered for taking water and since accused were amongst those people, they cannot be held to be members of unlawful assembly merely because they were present. Overt-act on their part needs to be proved to hold them liable under Section 149 of I.P.C. However, there is no evidence to show each of 17 accused played particular role. The learned judge has discussed the evidence of panch witnesses, namely, PW-9 Vikas Kerba Malale and PW-10 Babasaheb Khutbuddin Mujawar and has given sufficient reasons for not believing them. 7 10. After having given anxious considerations to the arguments advanced on behalf of the applicant- State and respondents, it does not appear to be a case to grant leave to file appeal. The judgment of the trial court is a well reasoned judgment. The learned Judge has considered all aspects in details. He has appreciated the evidence properly. 11. In the result, application deserves to be and is, accordingly rejected. Date:24/11/2009 pnd/criap3000.09 (P.R.BORKAR, J.)