1 IN THE HIGH COURT OF JUDICATURE OF BOMBAY BENCH AT AURANGABAD CRIMINAL APPEAL NO.222 OF 1997 1 Baburao s/o Chandu Padghane, age: 40 years, Occ: Labour, R/o Nevri, Tal. Hadgaon, District Nanded. 2 Shobhabai w/o Baburao Padghane, age: 35 years, Occ: Labour, R/o as above. Appeliants Versus 1 State of Maharashtra 2 Punjabai w/o Baburao Ukinde, age: major, Occ: Household, R/o Nevari, Tq.Hadgaon, District Nanded. Respondents Mrs.C.S.Deshmukh, advocate holding for Mr.S.P.Deshmukh, advocate for appellants. Mr.Dilip Bankar Patil, A.P.P. For Respondent No.1-State. CORAM: R.M.BORDE, J. DATE : 11 th June, 2009. ORAL JUDGMENT: 1 Appellants, who are related as husband and wife amongst themselves, have approached this Court raising exception to the judgment and order dated 27.06.1997, passed by Additional Sessions 2 Judge, Nanded, in Sessions Case No.69 of 1995. Accused no.1 has been held guilty for offence punishable under Section 324 of I.P.C. and is sentenced to pay fine of Rs.2000/-, in default, to suffer rigorous imprisonment for six months. Accused no.2 Shobhabai is held guilty for offence punishable under Section 325 of I.P.C. and is sentenced to suffer simple imprisonment for six months and to pay fine of Rs.500/-, in default, to suffer imprisonment for one month. Out of the fine amount recoverable, an amount of Rs.1000/- is directed to be paid to P.W.4 Punjabai, as compensation. 2 Accused were charged for commission of offence punishable under Section 307 read with Section 34 of the Indian Penal Code. One Kondiba Ukandi Padghane son of injured witness Punjabai lodged information with police on 18.10.1994, whereby it is stated by the informant that he is resident of village Nevri. He resides along with his father, two brothers and mother Punjabai. Some three days prior to the incident, daughter of Shobhabai w/o Baburao i.e. accused no.2, who reside just nearby, had committed theft of electric bulb from his residence, which was witnessed by his younger brother Trimbak. On 18.10.1994, his mother Punjabai was inquiring with her neighbour Mirabai in respect of theft of bulb, at that time, Shobhabai – accused no.2, came there and started abusing mother of informant. She also called her husband who came there armed with a stick. Baburao, accused no.1, is stated to have inflicted a blow with the help of a stick on right hand of his mother Punjabai. At that moment, Shobhabai also inflicted a blow with the help of stone on the face of his mother, which landed on her cheek. His mother sustained bleeding injury. She was thereafter taken to the Civil 3 Hospital for treatment. 3 After recording first information report, police registered crime for the offence punishable under Section 307 read with Section 34 of I.P.C. and initiated investigation. After completing investigation, police presented charge sheet against the accused in the Court of Judicial Magistrate, First Class, Hadgaon. The case, being triable by the Court of Sessions, was committed to the Court of Sessions, Nanded. Charge was framed by the trial Court, to which accused pleaded not guilty. Defence of the accused is of total denial. According to them, they are from brotherliness of the complainant and have been falsely implicated in the case. 4 The prosecution, in order to bring home guilt of the accused, has examined in all eight witnesses. Kondiba son of injured witness Punjabai is examined as P.W.1. He has stated about the complicity of Baburao and his wife in the alleged crime. He has stated in the cross examination that accused Baburao is from his brotherhood and their family has good relations with other brothers except Baburao. In the cross examination, the witness has stated that quarrel between his mother and accused Shobhabai was started when he had left for taking a round in the village and the quarrel was still going on while he returned back to home from village. He further stated that accused Baburao came to house much after he returned home from village. The admission given in the cross examination, in respect of return of Baburao to his house much after he came home from village, falsifies his allegation in respect of complicity of Baburao in the crime. He has fained ignorance in respect of 4 accused having electricity connection at their residence. The evidence of P.W.4 Punjabai itself falsifies the whole case put up by the prosecution. Punjabai is the injured witness, who is alleged to have been beaten by accused nos.1 and 2. It is the prosecution case that quarrel between accused and complainant was initiated on account of theft of electrical bulb by daughter of Shobhabai. However, Punjabai, in her evidence, has admitted that there is no electric connection at her residence or at the house of accused. In answer to the Court question, she has stated that there is electric connection at the residence of her another son Uttam, however, he resides at Nanded, since last 5/6 years. She has also stated that Baburao is employed as an yearly servant and goes to the field every day at 6 O’ clock in the morning. She has denied the factum in respect of recording of statement by police. Thus, the version put up by the prosecution in respect of origin of the quarrel appears to be false and concocted. P.W.1 Kondiba, son of Punjabai has stated in his complaint that electric bulb from his residence was stolen. However, P.W.4 Punjabai, injured witness, has specifically stated that she does not have any electric connection at her residence nor accused have any facility of electricity at their residence. The origin of quarrel, as such, stated by the prosecution witnesses, appears to be doubtful. P.W.1 Kondiba has specifically admitted in his deposition that Baburao returned to the house after his return from village. Whereas, P.W.4 Punjabai has also admitted that Baburao goes to work at 6 O’ clock in the morning. The incident is stated to have occurred at 9 O’ clock. Considering all these infirmities, it is difficult to place reliance on the prosecution version. 5 That, so far as injury sustained by P.W.4 Punjabai is 5 concerned, a suggestion is given to the effect that such an injury is possible by fall on stony surface and the doctor has stated that such injury is possible if portion of face comes in contact with stone due to fall. That, so far as evidence in respect of recovery of stick and stone is concerned, same also does not appear to be reliable. P.W.5 Shivaji is the pancha witness in respect of recovery of stick and stone. The recovery is effected in the Police Station while accused were in police custody. It is stated by the witness, that accused was in police custody and was in possession of a stick and stone and those articles were seized under panchanama at the police station itself. The evidence in respect of seizure of stick and stone from the accused, who was in police custody, at the relevant time, does not inspire confidence. Moreover, there is no evidence to the effect that the stick or stone were stained with blood. 6 Considering all these relevant circumstances, when origin of the prosecution story appears to be shaky and further when part of the version put forth by the prosecution witnesses appears to be false, it is not safe to place reliance on the prosecution version. It has also to be taken note of that P.W.6 Subhash Padghane, who is neighbour of injured witness and is an independent witness, has not supported the prosecution version. P.W.6 Subhash is declared hostile as he has refused to support the prosecution case. In these circumstances, judgment passed by the trial Court, holding accused guilty, cannot be maintained. 7 In the result, Appeal presented by appellants stands allowed. The order of conviction and sentence imposed by Additional Sessions Judge, Nanded on 27.06.1997 in Sessions Case No.69/1995 is 6 quashed and set aside. Accused-appellants are acquitted of the charge levelled against them. Accused-appellants are already enlarged on bail. Their bail bonds stand cancelled. Fine amount, deposited by the appellants, be refunded back to them. (R.M.BORDE) JUDGE ******* adb/criappeal22297