1 FARAD CONTINUATION SHEET NO. IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE, NAGPUR BENCH, NAGPUR Cr. Application No.1083/2009 in Criminal Appeal No. 171/2009 Central Bureau of Investigation vs. Gopal Sakru Binjewar and another. Office Notes, Office Memoranda of Coram, appearances, Court’s orders of directions Court’s or Judge’s orders and Registrar’s orders Coram : A.P. Lavande & Prasanna B.Varale, JJ. Order reserved on :30.6.2009. Order pronounced on 8/7/2009. Heard Mr. Ejaz Khan, learned Special Public Prosecutor for the applicant/appellant and Mr. Sudeep Jaiswal, learned counsel for respondents 1,2, 6 and 7 and Mr. N.S. Khandewala, learned counsel for the respondents 3, 4, 5 and 8. C.B.I. seeks leave to appeal against the judgment and order of acquittal of the respondents for the offences punishable under Section 3(1)(x), 3(1)(xi), 3(2)(v) and 3(2) vi) of the Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities Act) 1989 (“the Act” for short). The respondents along with three other accused were prosecuted for having committed offences punishable under Sections 302, 354, 449, 201, 148 read with Sections 149 and 120-B of the Indian Penal Code for causing death of four male persons of Bhayyalal Bhotmange. The respondents were also charged for having committed offences under Section 3 (1)(x), 3 (1)(xi), 2 2(3)(v) and 3(2)(vi) of the Act. The prosecution has alleged that the accused had committed murder of four members of Bhayyalal Bhotmange. Learned Judge convicted eight respondents for all the offences for which they have charged except the offences under the Act. The learned Judge relied upon the judgments of this Court in Manohar Kulkarni vs. State of Maharashtra : 2005 (4) Mh.L.J. 588 and Prakash Gopalrao Bhure vs. State of Maharashtra :2008 ALL M.R. (Cri.) 180 in which this Court has held that F.I.R. should disclose ingredients of offence under the Act, failing which offence cannot be registered and investigated. Learned Judge also held that there were omissions in the testimonies of the prosecution witnesses vis-a-vis their statements recorded by the police as well as C.B.I. Consequently, the learned Judge acquitted the respondents for offence under the Act. Mr. Ijaz submitted that the view taken by this Court in the above referred judgments is overruled by the Apex Court in Criminal Appeal No.287/2009 (unreported) Ashabai Machindra Adhagale Vs. State of Maharashtra and another in which the ratio laid down in the above referred cases has been overruled. He further submitted that the omissions vis-a-vis the earlier statements are not fatal and in the statements recorded the witnesses have stated that remarks were made on the basis of caste. He, therefore, submitted that the acquittal of the respondents for the offences under the Act is unsustainable. Mr. Khan invited our attention to the statements of relevant witnesses examined by the prosecution, namely Mukesh Pusam (PW 2) Suresh Khandate 3 (PW 3) and Dinesh Dhande (PW 19). Per contra, Mr. Jaiswal, learned counsel for respondents 1,2, 6 and 7 and Mr. Khandewale, learned counsel for respondents 3,4,5 and 8 submitted that learned Judge was absolutely justified in acquitting the respondents for the offences punishable under the Act in view of the omissions in their statements before the police as well as C.B.I. Learned Counsel, therefore, submitted that there is absolutely no perversity in the approach of the learned Judge while acquitting the respondents for offences punishable under the Act. Having heard learned Special Public Prosecutor for the applicant and learned counsel for the respondents, we are of the considered opinion that the matter requires consideration. The authorities, upon which reliance has been placed by learned Judge, have been overruled by the Apex Court in the case of Ashabai Machindra Adhagale (supra) relied upon by Mr. Khan. Moreover, the effect of omissions vis-a-vis statements before the police and before the C.B.I. requires to be gone into, having regard to the nature of the crime and the facts and circumstances of the case. Therefore, we grant leave to appeal against the judgment and order of acquittal dated 15/24th September, 2008 passed by the Additional Sessions Judge, Bhandara in Special Criminal Case No.1/2007. JUDGE JUDGE Ambulkar 4