1` IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH, NAGPUR Criminal Application (APPA) No. 103/2011 in Criminal Appeal No. 69/2011 State of Maharashtra, through Police Station Officer, Police Station, Karanja (G), Distt. Wardha vs. Suresh Wamanrao Pathade and others. ----------------------------------------------------------------------------------- Notes, Office Memoranda of Coram, appearances, Court's orders Court's or Judge's or directions and Registrar's orders. Orders. Mr. T.A.Mirza, APP for the appellant. Mr.M.B.Naidu, Advocate for respondents CORAM : MRS. V.K.TAHILRAMANI & M.L.TAHALIYANI, JJ DATE : 18.04.2011 The applicant/appellant- State of Maharashtra being aggrieved by the Judgment and order dated 29.7.2010 passed by the Additional Sessions Judge, Wardha in Special Case No. 1/2008 has preferred this application for leave to file against the acquittal of the respondents/ original accused nos. 1 to 11. By the said Judgment and order the learned Additional Sessions Judge, Wardha acquitted all the respondents under sections 147, 148, 307, 324 read with 149 of the Indian Penal Code and under section 3(1)(x) of the Scheduled 2` Castes and Scheduled Tribes (Prevention of Atrocities) Act. 2. The prosecution case, briefly stated, is as under: On 14.8.2007 all the accused formed an unlawful assembly and in furtherance of their common object assaulted complainant P.W.6 Vasanta Bagade and his family members by means of cart poles and also attempted to commit murder of Vasanta Bagade and humiliated him in a public place on the ground that he was a member of Scheduled caste. 3. Charge under sections 147, 148, 324, 307 read with 149 of the Indian Penal Code and under section 3(1)(x) of Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act came to be framed against the respondents. Respondents pleaded not guilty to the said charge and claimed to be tried. Their defence is that of total denial and false implication. After going through the evidence adduced by the prosecution, the 3` learned Additional Sessions Judge acquitted the respondents accused as stated above. Hence, this appeal. 4. We have heard the learned APP for the appellant State and Shri M.B.Naidu, learned counsel for the respondents. We have perused the evidence in the present case as well as the Judgment and order passed by the learned Additional Sessions Judge. After giving our anxious consideration to the matter, we are of the opinion, that the Judgment and order of the trial court deserves to be upheld for the reasons stated hereinafter. 5. On careful consideration of the evidence of the complainant P.W.6 Vasanta, we find that his testimony is full of improvements on material particulars. He has not at all disclosed while lodging his FIR that Hanumant Pathade gave him abuses in relation to his caste. None of the other witnesses also stated about giving of abuses by any accused to the 4` complainant. Thus, the learned Sessions Judge was right in holding that no offence was made out under the Scheduled Caste and Scheduled Tribes (Prevention of Atrocities) Act. 6. As far as the actual assault is concerned, P.W.6 Vasanta has stated in his examination-in-chief that the accused dragged him and threatened to finish him by pouring kerosene on him or by giving shock to him and, thereafter he was assaulted. However, it is pertinent to note that he has not disclosed so before the police. In his deposition before the Court he has not stated anything about accused nos. 9 to 11. So far as accused nos. 9 to 11 are concerned, his testimony is totally silent in relation to their involvement in the crime. In his testimony before the court he has disclosed the names of Keshav and Gajanan as having participated in the incident but these persons have not been made accused. There is another important circumstance, due to which, testimony of P.W. 6 Vasanta is rendered unreliable. We shall advert to it a 5` little later. 7. It is the prosecution case that in the incident P.W. 7 Shewantabai was also assaulted by the accused persons. As far as this aspect is concerned, it is to be noted that the complainant P.W.6 Vasanta did not disclose while lodging his FIR that his mother was also assaulted by the accused persons as she tried to save him. He has also not disclosed that his father P.W.8 Vyankati and his wife P.W.9 Vandana were restrained by the accused persons when they tried to come near him. In fact, according to the complainant, while accused persons were assaulting him near Boudha Vihar police came and rescued him from the clutches of the accused persons. However, according to P.W.11 ASI Dawade on receipt of phone call he along with the staff members had gone to Shelgaon (Lawane). At that time the complainant was found lying on the road. ASI Dawade has not stated anything about the presence of the wife or parents of the informant near him. Thus, the evidence of P.W. 11 ASI Dawade falsifies the version of 6` the complainant that when the informant was assaulted his mother was also assaulted and at that time his father and his wife tried to save him but they were restrained by the accused persons. According to the informant, he went to Hope Hospital i.e. private hospital and after 2-3 days police came to the hospital and obtained his report. However, according to P.W.11 ASI Dawade the informant was admitted in the Rural Hospital, Karanja. ASI Dawade visited the informant and obtained his report (Exh.67). He also obtained the medical certificate of the informant and thereafter he returned back to the Police Station. It is pertinent to note that both the informant and his wife P.W.9 Vandana denied lodging of any report in Rural Hospital at Karanja. In fact, the informant has categorically stated that 2-3 days after being admitted in Hope hospital, police contacted him in the hospital and obtained his report. We find that this major discrepancy shakes the very foundation of the prosecution case and it renders his testimony as unreliable. 7` 8. It has also come on record through P.W.6 Vasanta that when he returned back to his house at about 9 p.m. after the episode at Chandewani Fata, he saw the police jeep in front of his house as police came to his house in his search on the basis of the report lodged by Hanumanta. However, the parents and wife of the complainant have tried to suppress the fact that police had come in search of Vasanta as FIR had been lodged against him by Hanumanta in relation to the incident at Chandwani Fata. 9. The evidence of witness P.W.9 Vandana is also full of improvements. She has not at all disclosed before the police that she saw the accused persons standing near Boudha Vihar along with cart poles and on seeing her husband coming out from the lane, they rushed on him shouting 'see Vasanta is going'. She also did not state before the police that her mother- in- law and herself requested the accused persons not to assault her husband. She did not state before the police that Surekha brought a string and tied the legs of her 8` husband and the accused nos. 1,4,6 ,9 and other accused dragged her husband and were saying not to leave her husband and to kill him. Her version before the police (Exh. 131 and 132) indicates that when her husband returned back to the house that time he had a bleeding injury and he stated that he was assaulted by the boys from Chandewani by cart poles. It is pertinent to note that the none of the accused are from Chandewani but in fact they are from Shelgaon (Lavane). 10. So far as the evidence of P.W.8 Vyankati Bagade is concerned, he has not at all disclosed the presence of his daughter-in- law Vandana and his wife Shevantabai at the time of alleged incident. His version nowhere indicates that the accused persons assaulted Shevantabai when she tried to save Vasanta by covering him. He has also not stated before the police that Vasanta came from the village side and asked him not to stop and went away towards the field. He did not state the names of the accused persons armed with cart 9` poles as well as the accused persons who assaulted Vasanta by cart poles. If his improved version is discarded then his evidence is totally vague. So also his version falsifies the evidence of mother and wife of the complainant. 11. It is the case of the informant that he was assaulted by cart poles which are like wooden logs. However, the complainant was found to have sustained three puncture wounds on the right shin and right foot. It is the specific case of the prosecution that Vasanta was assaulted by articles 1 to 8. Articles 1 to 8 are like wooden logs. There are no pointed edges to any of the sticks or logs which would cause puncture wound. According to the medical certificate, Vasanta had sustained above mentioned three puncture wounds on right shin and on right foot, one abrasion and three lacerated wounds. However, medical certificate does not state that the injuries were grievous in nature. Looking to the evidence of the doctor it cannot be said that the case would fall under section 307 of the Indian 10` Penal Code. 12. It is pertinent to note that as far as P.W.8 Vyankati, P.W.9 Vandana and P.W. 10 Tukaram are concerned, they claimed to be eye witnesses but their statements have been recorded belatedly. The incident has taken place on 14.8.200. However, the statements of these witnesses were recorded on 17.10.2007. Hence, delay in recording the statements also causes grave doubt in the mind regarding the veracity of the evidence of these witnesses. 13. The learned Sessions Judge has taken into consideration all the above aspects and thereafter he has acquitted the respondents. We may make useful reference to the decision of the Supreme Court in State of Uttar Pradesh vs. Dinesh (2009)3 Scale, 345 wherein in a case of appeal against acquittal it was held that if two reasonable conclusions are possible on the basis of the evidence on record, the appellate court should not disturb the finding of acquittal recorded by the trial court. The Supreme Court in 11` C. Anthony vs. K.G. Raghavan Nair reported in (2003) 1 SCC 1 has observed that when two views are possible and when the view taken by the trial Court is a reasonable and possible view, the High Court can not in an appeal substitute its findings merely because another contrary opinion was possible on the basis of the material on record. It is further observed that if two reasonable conclusions can be reached on the basis of the evidence on record, appellate court should not disturb the findings of the trial court. Looking to the evidence on record, we find that the view taken by the trial court is a reasonable and possible view and hence no case is made out for interference. Hence, the application for leave to appeal is rejected. Consequently, the Criminal Appeal No. 69/11 is dismissed. . JUDGE JUDGE patle 12`