Cri.Appeal No.176/1993 1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY, BENCH AT AURANGABAD CRIMINAL APPEAL NO.176 OF 1993 The State of Maharashtra ..Appellant (Orig.Complainant ) VERSUS 1. Dagdu s/o Yeshwanta Jarad, Age 45 years, 2. Prakash Sarjarao Khendke, Age 32 years, 3. Raosaheb Suryabhan Khendke, Age 35 years, 4. Shamrao Suryabhan Khendke, Age 25 years, 5. Dnyandeo Panditrao Khendke, Age 25 years, 6. Baburao Bhimrao Khendke, Age 40 years, 7. Sarjerao Laxmanrao Khendke, Age 70 years, All R/o Ambadgaon, Taluka and District Jalna ..Respondents (Orig.Accused) Mr K.G.Patil, Assistant Public Prosecutor for appellant Mr V.C.Solshe, Advocate for respondents 1 to 7 WITH Cri.Appeal No.176/1993 2 CRIMINAL REVISION APPLICATION NO.127 OF 1993 Nivrutti s/o Bajirao Jarhad, Age 48 years, Occu.Agriculturist, R/o Ambadgaon in Tq. Badnapur, District Jalna ..Revision Petitioner (Original Complainant) VERSUS 1. Dagdu s/o Yeshwanta Jarhad, Age 47 years, 2. Prakash s/o Sarjarao Khendke, Age 34 years, 3. Raosaheb s/o Suryabhan Khendke, Age 35 years, 4. Shamrao s/o Suryabhan Khendke, Age 26 years, 5. Dnyandeo s/o Panditrao Khendke, Age 27 years, 6. Baburao s/o Bhimrao Khendke, Age 42 years, 7. Sarjerao s/o Laxmanrao Khendke, Age 72 years, All Agriculturists and R/o village Ambadgaon, in Taluka Badnapur, Dist.Jalna. 8. The State of Maharashtra, Through Police Station House, Badnapur, District Jalna, ..Respondents (Orig.Accused) CORAM : P.V. HARDAS AND A.V. POTDAR, JJ DATE : 6th January 2011 Cri.Appeal No.176/1993 3 ORAL JUDGMENT (PER P.V.HARDAS, J.) 1. Criminal appeal No.176 of 1993 has been filed by the State challenging the judgment of the Additional Sessions Judge, Jalna, dated 1.3.1993, in Sessions Case No.18/1991 acquitting the respondents of offence punishable under Sections 147, 149 and 307 of the Indian Penal Code. Criminal Revision Application No. 127 of 1993 has been filed by the applicant/original complainant challenging the acquittal of the respondents-accused. The learned Single Judge of this Court had directed that the Criminal Revision Application be placed along with the State appeal. 2. P.W.1 Nivrutti who is alleged to have sustained injuries was examined by P.W.10 Dr.Haridas Gujar on 3.10.1990 in the Civil Hospital at Jalna. Upon examination he noticed the following external injuries : 1. Fracture tibia fibula right lower 1/3rd 2. Fracture tibia left 3. Contusion right forearm middle third 4 x 2 cm 4. Fracture radius left upper third 5. Fracture rib 11th right 6. Contusion right scapular area 6 x 2 cm 7. Contusion left infra-scapular area 8 x 2 cm Cri.Appeal No.176/1993 4 He opined that all the injuries were caused by hard and blunt weapon and injuries No.1, 2, 4 and 5 were grievous while rest of the injuries were simple. He accordingly issued certificate at Exh.50. The X-rays are at Exhs.51 to 56. The trial Court upon filing of the charge-sheet against the present respondents had framed charge against the respondents vide Exh.15 for offence punishable under Section 147, 149 and 307 of the Indian Penal Code. It appears that no charge against the respondents for offence punishable under Section 307 read with Sec.149 of the Indian Penal Code was framed. 3. Be that as it may, the trial Court relied upon the testimony of P.W.1 Nivrutti, who is the injured complainant and the first informant who had lodged the first information report at Exh.27. The prosecution further relied upon the testimony of P.W.3 Shrirang and P.W.4 Santukrao as eye witnesses to the incident. Prosecution also relied upon the testimony of P.W.6 Anna and P.W.7 Piraji, who are said to be eye witnesses to the incident. The trial Court also relied upon the testimony of P.W.5 Vishnu in respect of the discovery and the seizure of the sticks at the behest of the respondents-accused, which sticks are alleged to have been used by the accused while committing the offence. Cri.Appeal No.176/1993 5 4. The trial Court disbelieved P.W.1 Nivrutti on the ground of long standing enmity between the complainant and the group of the accused. The trial Court further found that P.W.3 Shrirang and P.W.4 Santukrao who claimed to be travelling in a tractor driven by P.W.6 Anna appeared to be doubtful as P.W.6 Anna does not refer to the presence of P.W.3 Shrirang and P.W.4 Santukrao. Similarly, P.W.7 Piraji does not refer to the presence of P.W.6 Anna. Apart from this discrepancy, the trial Court found inter se variance in the testimony of the eye witnesses which necessitated in rejecting the entire prosecution case. The trial Court also chose not to place any reliance on the evidence relating to the seizure of the sticks as P.W.1 Nivrutti had admitted that the sticks which were produced in the Court were not the sticks which were wielded by the respondents-accused. The trial Court, therefore, found that the evidence of the complainant, though an injured witness was not wholly reliable and could not be accepted unless the evidence was corroborated by independent witnesses. The trial Court, therefore, came to the conclusion that though P.W.1 Nivrutti was an injured witness, the other independent witnesses examined by the prosecution corroborate the evidence of the complainant. 5. With the assistance of the learned Assistant Public Prosecutor and the learned Counsel appearing on behalf of the Cri.Appeal No.176/1993 6 respondents, we have perused the evidence of the complainant as well as the findings recorded by the trial Court. Upon such perusal, we are of the opinion that undoubtedly the relations between the complainant and the accused were strained since long. There were series of cases lodged against each other by the complainant and the accused. The complainant also did not refer to the presence of the other witnesses at the scene of the offence and in such circumstances the trial Court found that implicit reliance could not be placed on the testimony of complainant P.W. 1 Nivrutti, though he was an injured he was not found to be wholly reliable witness. The trial Court, therefore, attempted to seek corroboration from the other so called independent witnesses who had been examined by the prosecution and came to the conclusion that in the light of the inter se variance in the testimony of the prosecution witnesses, no reliance whatsoever could be placed on the evidence of P.W.1 Nivrutti or the other eye witnesses. 6. A reference at this stage may usefully be made to the judgment of the Supreme Court in Badri v.State of Rajasthan, AIR 1976 SUPREME COURT 560. The Supreme Court in the aforesaid judgment has categorised the witnesses into three categories, viz. (1) wholly reliable; (2) wholly unreliable and (3) neither reliable nor unreliable. In the present case P.W.1 Nivrutti Cri.Appeal No.176/1993 7 does not refer to the presence of the other eye witnesses at the spot. There is no cogent and reliable evidence that Nivrutti was rendered unconscious immediately after sustaining the injuries. Had it been so, Nivrutti would not have been able to state before the Court and attribute the overt act to each of the respondents- accused. As pointed out by us above, Nivrutti does not refer to the presence of the other eye witnesses at the scene of the offence. Apart from this a long standing enmity between Nivrutti and the accused and the fact that Nivrutti has admitted that the accused had lodged series of complaints against him impelled the trial Court to place P.W.1 Nivrutti in the category “neither reliable nor unreliable”. The trial Court, therefore, found that evidence of Nivrutti could not be accepted unless it was corroborated by other independent witnesses, though P.W.1 Nivrutti was an injured witness. It is true that doctrine of falsus in uno falsus in omnibus cannot be applied in a criminal trial and even if some of the accused have been falsely implicated would not be a ground for discarding the evidence of the prosecution in its entirety. In the present case prosecution has been able to establish the enmity between P.W.1 Nivrutti and the respondents-accused. In such circumstances, therefore, according to us the truth and the falsehood were so inextricably mixed up, that it was difficult to separate the truth from the falsehood and, therefore, the trial Court was justified in choosing not to place reliance on either P.W. Cri.Appeal No.176/1993 8 1 Nivrutti or the other eye witnesses. In this respect, reference be usefully made to the judgment of the Supreme Court in Kanbi Nanji Virji and others v. State of Gujarat, AIR 1970 SUPREME COURT 219. 7. With the assistance of the learned Counsel for the parties we have perused the findings recorded by the trial Court. To us it appears that the view taken by the trial Court is a possible view to be taken on the basis of evidence on record. We do not notice any perversity in reasoning of the trial Court. No interference is called for because another view is possible unless and until it palpably appears that the view taken by the trial Court is not a possible view or the reasoning thereof is perverse. We have noticed neither and, therefore, according to us this Criminal Appeal which is sans merit deserves to be dismissed. 8. Criminal Appeal No.176 of 1993 is dismissed confirming the acquittal. Bail bonds of the respondents-accused stand cancelled. In the light of the dismissal of the appeal, Criminal Revision Application No.127 of 1993 is also dismissed. - ( A.V. POTDAR, J.) ( P.V. HARDAS, J.) (vvr/176.93criapeal)