1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD. CRIMINAL APPEAL NO.256 OF 1997. 1. Haribhau S/o Punjaram Tantre, Age 33 years, Occ.Agrilculture. 2. Vithal Punjaram Tantre, Age 24 years, Occ.Agriculture. 3. Namdeo Punjaram Tantre, Age 22 years, Occ.Agriculture, All R/o Belmandal, Hadgaon, Tq. Hadgaon, Dist.Nanded. ... Appellants. Versus The State of Maharashtra ... Respondent. ... Mrs.S.S.Jadhav, advocate for the appellants. Mrs.R.D.Reddy, A.P.P. for the State. ... CORAM : V.R.KINGAONKAR,J. Reserved on : 07.08.2009. Pronounced on: 14.08.2009. JUDGMENT 1. Challenge in this appeal is to judgment 2 of conviction and sentence rendered by learned Additional Sessions Judge, Nanded, in Sessions Case No.14/1997, whereby the Respondent came to be convicted for offences punishable U/s 326 read with Section 34 of the I.P.C. and U/s 324 read with Section 34 of the I.P.C. and have been sentenced to suffer rigorous imprisonment for one year and to pay fine of Rs.500/- (Rupees five hundred), in default to suffer rigorous imprisonment for one month on first count and to suffer simple imprisonment for six months and to pay fine of Rs.200/- (Rupees two hundred), in default to suffer simple imprisonment for one month on the second count. 2. It is an admitted fact that there were two factions in village Belmandal, since before the village Panchayat elections of 1992. The Respondents (accused) are members of the faction headed by Dhondba, whereas injured complainant Uttam (P.W.1) and others are members of the faction headed by Devidas (P.W.2). There took place village Panchayat elections somewhere in 1992. It is uncontroverted that majority of the 3 candidates contesting from the panel of the Respondents had been elected. There was strained relationship between the two factions which was soared after the said elections. 3. The incident giving rise to the prosecution occurred in the morning of 16.11.1983 at about 9-30 a.m. at a intersection of cross roads from short distance in front of the village Panchayat office. The prosecution case is that one Babu and Kashinath were cutting jokes at each other at Ota (platform) in front of residential house of Dhondba, the leader of the faction of which the appellants were members. The small incident of teasing each other took ugly turn. They started quarreling with each other in a short while. They went near the cross roads, where the appellants also gathered. At that time, injured complainant Uttam (P.W.1) and his brothers etc., including their group leader Devidas (P.W.2), by means of an iron rod, a sickle, a stick and stones. They were injured during course of the assault. Some of the villagers intervened and rescued them. 4 Thereafter, the complainant Uttam and other injured persons went to Police Station at Hadgaon. They were referred to the Rural Hospital for medical examination. Since, the complainant Uttam was found to have received grievous injury, he was referred to the Civil Hospital at Nanded. It was noticed that he had sustained a fracture injury. The Police carried out certain investigation into the crime registered on the basis of complaint (FIR - Exh. 20). On the basis of the material gathered during course of investigation, the appellants were charge-sheeted for offences punishable U/ss 326, 324, 323 read with Section 34 of the I.P.C. 4. According to the defence version, the appellants mounted assault on them in the relevant morning. There was a melee. While some villagers were trying to rush for their help, injured complainant Uttam and his brothers as well as injured Devidas were pushed aside by the public members and had fallen during the stampede. Therefore, they might have received injuries. It was suggested that the appellants 5 were victims of the assault mounted by the complainant and his brothers etc. and had lodged a complaint prior to that of the FIR (Exh.20) filed by the complainant - Uttam. The appellants submitted that they have been framed in a false case though they are victims of the assault mounted in the same morning by the complainant - Uttam and others. 5. At the trial, the prosecution examined in all seven (7) witnesses in support of its case. The learned Additional Sessions Judge, came to the conclusion that the appellants voluntarily caused grievous hurt to the complainant - Uttam (P.W.1) by means of a dangerous weapon viz; iron rod and they shared common intention at the relevant time. The learned Sessions Judge also held that in furtherance of their common intention, the appellants voluntarily caused hurt to Devidas (P.W.2), Sambha (P.W.4), Prabhu Tantre by means of a sickle and a stick. Consequently, they were convicted and sentenced as described hereinabove. 6 6. Heard learned counsel for the appellants and learned A.P.P. for the State. 7. At the outset, let it be noted that, indisputably, some incident took place in the relevant morning which involved the appellants and the complainant Uttam (P.W.1) as well as the other three injured persons of his party. Thus, presence of the appellants at the spot as well as presence of complainant Uttam (P.W.1), Devidas (P.W.2), Sambha (P.W.4) and injured Prabhu is uncontroverted. It has come on the record that the appellant No.3 Namdeo sustained a fracture injury over the forehead in the course of the same incident. It has also come on record that the appellant No.2 Vithal sustained two contusions and one abrasion injury as shown in the Medico Legal Certificate (Exh.37). So also, appellant No.1 Haribhau received as many as six (6) injuries including contused lacerated wound, contusion and abrasions as shown in the Medico Legal Certificate (Exh.36). Needless to say that members of both the groups were injured during course of the same incident. 7 8. Though the prosecution has come out with the case that initially Kashinath and Baburao were cutting jokes at each other and thereafter started quarrelling, yet, neither of them was put in the witness box. The genesis of the incident is not clear from the evidence tendered by the prosecution witnesses. The said two persons belonging to opposite groups were initially sitting on ota in front of the house of Dhondba and after commencement of the brawl, they went towards the road. How come that the appellants on one side as well as the complainant Uttam, his brothers and injured Devidas reached the place of incident is rather not clear. Though, complainant (P.W.Uttam) deposed that he was returning towards his house from the agricultural land at the relevant time when he saw the quarrel between said Kashinath and Baburao, yet, such explanation is unconvincing. First, ordinarily, the agriculturists would return to the home after the day's work. Secondly, when the complainant - Uttam (P.W.1) claims to be only a spectator then it does not stand to reason as to why the appellants should 8 challenge him and urge him to come in front of them if he wanted to indulge in the quarrel. On close scrutiny of the version of the complainant - Uttam (P.W.1), it emerges that he has spelt out a lopsided story of the incident. His cross- examination reveals that previously on 7.11.1993, Baburao who belonged to group of the appellants, was assaulted by four persons from group of Devidas (P.W.2). That incident occurred on 7.11.1993 i.e. some nine (9) days before the incident in question. The members from panel of the appellants had won the Village Panchayat Elections. Obviously, the injured complainant (Uttam - P.W.1), Devidas (P.W.2) and their group members were enraged. It is admitted by the complainant Uttam (P.W.1) that the appellant No.1 had filed a complaint against him, injured Prabhu, injured Sambha, injured Devidas and other members of his group alleging that they assaulted him and others by means of sticks, axe and sickle in the same morning. Therefore, a counter case was instituted against them. It is worthy to be noted that the counter FIR was lodged by the appellant No.1, earlier in time before the 9 complainant Uttam, lodged the FIR (Exh.20). 9. On close scrutiny of the versions of injured complainant Uttam (P.W.1), Devidas (P.W. 2), and Prabhu (P.W.6) would show that genesis of the incident is rendered in the realm of obscurity. Though said Babu and Kashinath were exchanging jokes and there was no immediate cause for the quarrel, yet, their formal chit chating or cutting jokes was transformed into quarrel and thereafter took ugly turn of the mutual assault. It is not the version of the above injured persons that they counter assaulted the appellants in order to exercise right of self- protection. The injured witnesses only narrated that they were assaulted by the appellants. The version of Prabhu (P.W.6) reveals that nobody from the appellants' assaulted Babu who was from opposite group. Thus, the initial participants of the quarrel i.e. Babu and Kashinath were left unscathed, whereas the members of the party of injured Devidas (P.W.2) on one side and the members of the party of the appellants on the other side stood in front of each other and there 10 was a mutual fight. It is admitted by Prabhu (P.W.6) that when they were assaulted by the appellants then they were facing each other. He admits that counter case was pending against himself and six others on the basis of FIR lodged by the appellant No.1 regarding the same incident. 10. The prosecution evidence tends to show that there was a free fight between the two groups as a sequel to the minor quarrel between said Babu and Kashinath. The members of both the parties were injured. The version of Dr.Lomte (P.W.5), reveals that he noticed two injuries on person of complainant Uttam (P.W.1) as shown in the Medico Legal Certificate (Exh.29). One of the injuries was on the left forehead. It was contused lacerated wound of 3 cm. x 2 x bone deep through which fracture of the temporal bone was seen. It was a grievous injury. The fracture of the temporal bone was also noticed through x-ray examination. He referred to the x-ray plates Exh.30 and 31. He noticed five (5) injuries on person of injured Devidas (P.W.2) as shown in 11 the Medico Legal Certificate (Exh.32). He noticed three injuries on person of injured Sambha (P.W.4) as shown in the Medico Legal Certificate (Exh.33) and four (4) injuries as shown in the Medico Legal Certificate (Exh.34) on person of injured Prabhu (P.W.6). His version also reveals that there were six (6) injuries found on person of the appellant No.1 as indicated in the Medico Legal Certificate (Exh. 36), three injuries on person of the appellant No.2 as shown in the Medico Legal Certificate (Exh.37) and four (4) injuries on person of appellant No.3 Namdeo as shown in the Medico Legal Certificate (Exh.35). The injuries found on person of the appellant No.3 Namdeo, included a grievous injury on the right frontal area of the scalp. 11. The learned Sessions Judge also noticed that the versions of the complainant Uttam and other three witnesses was not supported by any independent evidence. The learned Sessions Judge also noticed that there was a discrepancy as regards place of incidence. For, it was stated by 12 Prabhu (P.W.6) that the incident occurred at the platform of the house of Dhondba. However, there was no stain of blood at the place referred to by him and also at the place referred to by injured Sambha (P.W.4). The learned Sessions Judge observed thus : "According to P.W.6 some part of the incident took place on the platform and some part on the open space. According to complainant it took place near Grampanchayat. So except complainant and other three (3) witnesses are not at all supporting each other and supporting the case of prosecution about happening of incident in the square in front of Grampanchayat. So their testimony is against the Panchanama (Exh.22) about the exact place of offence." The above referred observations of the learned Sessions Judge would show that the prosecution witnesses attempted to suppress genesis of the 13 incident as well as attempted to change the venue of the incident. The learned Sessions Judge also observed that there is no possibility of happening of the incident in the sequence narrated by the above referred witnesses including complainant Uttam (P.W.1). In the present fact situation, it is difficult to place implicit reliance on the versions of the complainant Uttam and the other three (3) witnesses examined by the prosecution. 12. What transpires from the record is that initially there took place some minor incident of quarrel between said Babu and Kashinath. The complainant - Uttam and his brothers as well as Devidas picked up the opportunity to teach a lesson to the appellants. The appellants did not hesitate in giving reply in the same manner. Therefore, there was a melee at the place of the incident. There was a free fight between the two groups. The members of both the groups were armed with dangerous weapons like iron rod, sickle and axe etc. Under these circumstances, it will have to be said that the prosecution 14 failed to establish the charge for offences punishable U/ss 326, 324 read with Section 34 of the I.P.C. against the appellants. The appellants deserve benefit of reasonable doubt created from the attending circumstances. There is no tangible evidence to infer that the appellants were aggressors, whereas party members of the complainant were at the receiving end. In this view of the matter, the impugned judgment of conviction and sentence rendered by the learned Sessions Judge is unsustainable. 13. In the result, the appeal is allowed. The impugned judgment of conviction and sentence rendered by the learned 3rd Additional Sessions Judge, Nanded in Sessions Case No.14/1997, is set aside. The appellants are acquitted of the charges levelled against them. Their bail bonds be deemed as cancelled. The amount of fine be refunded to each of them if has been recovered. (V.R.KINGAONKAR,J.) asp/office/Crappeal25697 15