1 CR.A.NO.542/2004 IN THE HIGH COURT OF JUDICATURE OF BOMBAY BENCH AT AURANGABAD CRIMINAL APPEAL NO.542/2004 (AURANGABAD) (Criminal Appeal No.679/1987 - Bombay) The State of Maharashtra. ...APPELLANT (Original Complainant) VERSUS 1. Pratap alias Kakasaheb Khanderao Chavan, age 35 years; (2. Gajaba Bhimaji Jamdar, age 65 years.) (Appeal abated as per order dt.11.9.2006) (3. Radhakishan Gajaba Jamdar, age 30 years;) (Appeal abated as per order dt.11.9.2006) 4. Sanjay Jayaram Jamdar, age 17 years; 5. Annasaheb Gajaba Jamdar, age 27 years; 6. Aaba Ganpat Jamdar, age 35 years; 7. Changdeo Bhikaji Jamdar, age 45 years; (8. Dadasaheb Madhavrao Chavan, age 45 years;) (Appeal abated as per order dt.11.9.2006) 9. Umesh Keshav Shinde, age 21 years; 10. Suresh Vitthalrao Deshmukh, age 25 years; 2 CR.A.NO.542/2004 (11. Vitthal Khanderao Chavan, age 56 years) (Appeal abated as per order dt.11.9.2006) 12. Shivaji Jayaram Jamdar, age 27 years; 13. Jayaram Bhikaji Jamdar, age 50 years; 14. Sakharam Jayram Jamdar, age 45 years; 15. Vijay Jayaram Jamdar, age 19 years; (16. Ganpat Khanderao Chavan, age 50 years.) (Appeal abated as per order dt.11.9.2006) 17. Vinayak Murlidhar Chavan, age 39 years; 18. Ashok Aabu Jamdar, age 25 years; 19. Mukund Madhavrao Chavan, age 24 years; 20. Fakira alias Bauesh Keshav Shinde, age 25 years; All resident of Dhotre, taluka Kopargaon, district Ahmadnagar. ...RESPONDENTS (Original accused Nos. 1 to 20) ... Mr. V.D.Godbharlale, APP for appellant State. Shri Sachin J.Salgare, Adv., h/f Smt.S.S.Jadhav, Advocate, for respondent nos. 1,9,10, 12, 13, 17, 19 & 20. Respondent Nos. 4, 5, 7 ( served through his son), Nos.14 and 15, Nos.6 and 18 served. 3 CR.A.NO.542/2004 Appeal abated as against Respondent nos. 2, 3, 8, 11 and 16 as per Court's order dt.11.9.2006. ... CORAM: A.H.JOSHI & A.R.JOSHI, JJ. Date: AUGUST 26th,2011 *** JUDGMENT: (Per A.H.Joshi, J.) 1. This is a State appeal against acquittal ordered by learned Additional Sessions Judge, Ahmednagar, in Sessions Case No.144/1986, on 29.4.1987. 2. The accused persons, who are 20 in number, were charged for commission of offenses punishable under Sections 147, 148, 149, 302, 323, 324, 326, 504, 327, 506 all read with Section 34 of IPC. 3. Heard learned Public Prosecutor for the appellant-State and Shri Sachin J.Salgare, learned Advocate, holding for Smt. S.S.Jadhav, learned Advocate for respondent nos.1, 9, 10, 13, 17, 19 and 20. 4. It is a case where a riotous mob had injured the complainant and three other persons and one person lost the life. 4 CR.A.NO.542/2004 5. The prosecution has relied with emphasis on the testimonies of the complainant PW 5, other three injured witnesses, PW 6 Karbhari Jamdar, PW 7 Kashinath Jamdar, PW 8 Bapu Jamdar, and PW 11 Bapu Jamdar, who was not injured. 6. Perusal of testimonies of the witnesses reveals that the situation which existed on the scene of offense was that of turmoil. The witnesses have admitted in the cross examination that the mob which had pelted stones and assaulted, etc., consisted of a large number of persons. 7. The witnesses have named different persons having assaulted, particularly, the evidence of PW No.11 Dnyandeo Jamdar, which was fervently relied upon by prosecution attributes blame to accused No.14 Sakharam, for assault, by chain, accused no.15 Vijay by stick blow and further adds that mob of 15 to 20 persons came out of the Wada of accused No.16 Ganpat amongst whom various accused were comprised, and started beating the victims with the help of iron rods, stick. 8. Use of iron rod is attributed against accused No.16 Ganpat, No. 11 Vithal, No.13 Jairam and No.15 Vijay with sticks. The versions of PW 5 CR.A.NO.542/2004 No. 10 Nanasaheb and No.11 Dnyandeo seem to be of such nature that it becomes difficult for the Court whether to believe injured witnesses, or the other witnesses. 9. In the situation of turmoil, it was ordinarily difficult even for the victims to identify one and all accused. Ordinarily, there cannot be difference of opinion that, when the two or three victims, who were simultaneously assaulted, would be consistent as to how one and the same person assaulted all of them. 10. In the result, what emerges from the prosecution evidence does not prove that an unlawful assembly had moved ahead with regard/or furtherance to a common object. It is a case, where few accused started assaulting, and others have joined in the assault, without any occasion either of pre-meditation or prior meeting of the minds, whatsoever common object by any mode of commonness as to object. 11. The prosecution evidence leads to only conclusion that there existed some quarrel or dispute, and as to who began it, is not explained. In absence of proof of genesis of offense, it would be highly risky to name particular accused or any group of one side to be the aggressors or initiators. The injuries on 6 CR.A.NO.542/2004 the person of deceased Trimbak all were not grievous. It is true that Trimbak died due to collective effect of injuries, however, in absence of intention of any one or more amongst all the accused persons to kill Trimbak, or knowledge of probable result and as these matters are not proved and common object is not proved, it would not be permissible to hold either one or all the members of unlawful assembly, to be vicariously liable. 12. About testimonies of PW Nos. 7, 5, 11 and 15, the learned Sessions Judge has given clear finding that these witnesses are not deposing truth. 13. In present appeal, the prosecution has failed to show as to how such a clear-cut finding cannot be recorded or, it is perverse and erroneous, without showing any piece of evidence on record being shown to have been misread or construed contrary to what it is. 14. In the result, the judgment arrived at by the learned Sessions Judge that, in the absence of proof of common intention to kill Trimbak, or common object to assault other persons, and if conviction is to be concluded, it will mean that accused are to be convicted on suspicion than on evidence. In the result, the 7 CR.A.NO.542/2004 judgment of acquittal cannot be faulted with. 15. In the result, we hold that this appeal against acquittal has no merit. Therefore, the appeal is dismissed. (A.R.JOSHI, J.) (A.H.JOSHI,J.) ... AGP/6542-04cr.a 8 CR.A.NO.542/2004 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD CRIMINAL APPEAL NO.542/2004 (Aurangabad) (Criminal Appeal No.679/1987 (Bombay) (The State Vs. Pratap @ Kakasaheb Khanderao Chavan and others. Date of decision:26.8.2011 For approval and signature HON'BLE MR.JUSTICE A.H.JOSHI HON'BLE MR.JUSTICE A.R.JOSHI 1. Whether the Reporters of Local Papers Yes/No. may be allowed to see the Judgment ? 2. To be referred to the Reporter or not ? Yes/No 3. Whether Their Lordships wish to see No. the fair copy of the Judgment ? 4. Whether this case involves a substantial? No. question of law as to the interpretation of the Constitution of India, 1950, or any order made thereunder ? 5. Whether it is to be circulated to the No. Civil Judges ? 6. Whether the case involves an important No question of law and whether a copy of the Order should be sent to Bombay, Goa and Nagpur Office ? Private Secretary AGP/office/542-04cr.a