12.appln2979-10 rma IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPLICATION NO. 2979 OF 2010 IN CRIMINAL APPEAL NO. OF 2009 The State of Maharashtra .. Applicant Vs Krishna Dadu Sonwalkar and Ors .. Respondents Ms. P.H. Kantharia, APP for the Applicant CORAM : SMT. RANJANA DESAI & SMT. V.K. TAHILRAMANI, JJ. DATE : 13th JULY, 2010 ORAL ORDER [PER SMT. V.K. TAHILRAMANI, J]: 1. The applicant - State of Maharashtra has preferred this application for leave to file appeal against the judgment and order dated 07.08.2009 passed by the learned Additional Sessions Judge, Satara in Sessions Case No. 149 of 2005. By the said judgment and order, the respondents i.e original accused nos. 1 to 5 came to be acquitted of the offences under sections 143, 147, 148, 307, 436, 323, 504, 506 r/w 149 of the IPC, 3(2)(iii) of the Scheduled Caste and Scheduled Tribes (Prevention of Atrocities) Act. 2. The prosecution case, briefly stated is as under: 1 12.appln2979-10 The complainant PW4 Sunita More was residing at Village Wadle, Taluka Phaltan, Satara along with her mother Banubai Khavle (PW5), brothers Shankar Khavle (PW2), Ankush Khavle, their wives Mangalabai and Usha Ankush Khavle (PW11), sister Surekha (PW10) and nephew Sharad Ankush Khavle (PW3). They are all agriculturists. Accused NO. 1 Krishna Sonwalkar was also residing in the same village along with his father, two sons i.e Accused Nos. 2 Tukaram, accused no. 3 Balu and two daughters-in-law i.e. accused nos. 4 and 5 Ratan and Suvarna. They were also agriculturists. There was dispute between the two families on account of grazing of sheep of the accused in the field of the complainant, hence both the families were on cross-terms. On 28.02.2005, PW4 Sunita went to Phaltan Police Station and lodged a complaint at about 2.45 p.m wherein she alleged that on 27.02.2005 at about 5.30 p.m, her brother Shankar Khavle was beaten by accused Tukaram and Balu in Moti Chowk at Phaltan on the ground that he had lodged complainant against them in Phaltan Police Station. In that regard, Non- cognizable complaint (Exh 69) was already lodged by Shankar Khavle. Thereafter, that very day at 7.30 p.m., when the complainant, her mother Banubai, sister-in-law Usha were present at their house, accused Tukaram, his brother Balu, their wives Ratan, Sindhu and father Krishna came there and asked the complainant's mother PW5 Banubai where her son PW2 2 12.appln2979-10 Shankar had gone and why he files false cases against them. Accused Tukaram abused them and he assaulted Banubai on the head with axe and injured her. Accused Balu was armed with an iron-bar with which he assaulted the complainant, her mother Banubai, sister-in-law and nephew Sharad. Other accused were armed with sticks with which they assaulted them. It is further alleged that accused Tukaram set the shed on fire due to which articles worth Rs. 3000/- were destroyed. 3. We have heard the learned APP for the applicant-State of Maharashtra. We have perused the judgment and order passed by the learned Sessions Judge. We have also perused the evidence which has been produced by the learned APP. After carefully considering the matter, for the reasons stated herein below, we are of the opinion that the judgment and order passed by the learned Sessions Judge does not call for any interference. 4. It is the case of the prosecution that three persons were injured in the incident i.e PW10 Surekha, PW3 Sharad and PW5 Banubai. In order to prove that PW10 Surekha was injured in the incident, the prosecution has placed reliance on medical certificate (Exh 60). She was examined on 01.03.2005 in respect of assault by a stick at 07.00 pm on 3 12.appln2979-10 28.02.2005. The certificate shows contusions over her right elbow joint and right clavicular bone, middle one-third. However, it is noticed that the columns in respect of age, cause and nature of injuries are totally blank. In view of the important aspects in the medical certificate being left blank, the learned Sessions Judge has rightly held that the Said medical certificate cannot be taken into consideration. 5. It is also the prosecution case that PW3 Sharad was also injured in the incident. No doubt, Sharad has deposed about the alleged assault on him but we find that in that regard, no medical evidence is forthcoming. Thus, there is no material to show that PW3 Sharad was examined by any Doctor and any medical certificate was issued in respect of any injuries to him. In such case, it is difficult to hold that PW3 Sharad was also injured in the incident. 6. As far as PW5 Banubai is concerned, the prosecution has tried to make out a case that she was grievously injured in the incident and hence, section 307 is attracted. PW8 Dr. Vishal Doshi examined Banubai on 28.02.2005 at 12.25 p.m. He deposed that the patient has given history of assault by two persons by means of iron rod and axe on 27.02.2005 at 08.00 pm. at Wadle. After examining Banubai, PW8 Dr. Doshi found the following injuries of her person: 4 12.appln2979-10 1.Blunt trauma to right forearm near wrist joint, movements were painful and restricted, crepitus present. 2.Blunt trauma to left arm, near elbow joint, movements were painful and restricted. 3.Incised wound over forehead, 'V' shape, size 5 cm. in length,0.5 to 1 cm in width. As far as injuries nos 1 and 2 are concerned, they are not on the vital parts of the body i.e they are on the arms. Dr. Doshi has not stated that there was any underlying fracture in respect of these two injuries, hence these two injuries cannot be said to be covered under section 307. As far as injury no. 3 i.e incised wound over forehead is concerned, Dr. Doshi has admitted that the injury was in 'V' shape and it was not possible by means of single blow with axe. Dr. Doshi has categorically stated that injury no. 3 did not cause any fracture nor was there any profuse bleeding nor any internal damage on account of said injury to the brain of Banubai. In such case, it is difficult to say that injury no. 3 would be such as would fall under section 307 of the IPC or even under section 326 of IPC. 7. The prosecution witnesses have specifically deposed that accused Tukaram was armed with an axe, accused Balu was 5 12.appln2979-10 armed with iron-bar and others were armed with sticks. The said weapons came to be seized from the accused persons. However, the complainant PW4 Sunita has stated that these are not the weapons used in the incident, hence seizure of these weapons cannot be relied upon. Seizure of weapons, even if presumed to be true, the complainant Sunita has disowned those weapons to be the same weapons. Moreover, C.A. report (Exh 70) reveals the blood group of PW5 Banubai is 'AB' whereas C.A. report (Exh 64) reveals that no blood stains were found on the seized sticks and axe. 8. As far as burning of the shed is concerned, PW2 Shankar is absolutely silent regarding burning of the shed. PW10 Surekha, PW5 Banubai and PW3 Sharad are also totally silent in respect of burning of their shed. Some of the witnesses stated that it was the house which was burnt whereas other witnesses state that it was a shed. According to the complainant PW10 Surekha, the accused Tukaram had set the 'shed' on fire. However, PW5 Banubai had deposed that accused Krishna, Tukaram and Balu had set her 'house' on fire whereas PW3 Sharad had stated that Balu and Tukaram set 'his house' on fire. Thus, there is serious discrepancy in relation to the shed being burnt and the person/s who set it on fire. 6 12.appln2979-10 9. It is recorded in the cross-examination of PW2 Shankar Khavale that the place where the incident occurred is in the midst of many other houses. PW3 Sharad, PW4 Sunita, PW5 Banubai, PW10 Surekha and PW11 Usha are all interested witnesses, in such case, when the incident occurred in the midst of so many houses, it is not understood why the prosecution failed to adduce evidence of neighbours and independent witnesses. It is not as if the evidence of interested witnesses should be excluded from consideration but in the present case, we find that the evidence of the witnesses is contrary to each other and there is great variance in their version, hence, we do not find it safe to rely on their evidence. We have also noted that PW11 Usha admitted in her cross-examination that when she came outside the house, she saw that her mother-in-law PW5 Banubai and her son PW3 Sharad had received injuries. This shows that PW11 Usha had not actually witnessed the incident but she arrived at the spot later on. 10. We have observed in the earlier para that the incident occurred in the midst of houses which were surrounded by the houses of other Khaule families i.e the house of the complainant was in the midst of the houses of other people from their community. In such case, when the house of the complainant was surrounded by houses of so many other people 7 12.appln2979-10 belonging to their community, it does not appear to be probable that the accused would come in the evening and dare to attack female witnesses and to set their house on fire. It has also come on record that not only were a number of close relatives of the complainant present but the five children of PW11 Usha i.e sister in law of the complainant were also present in the house. Her father-in-law as well as other persons were present in her house. In such case, they would have certainly raised some protest and put up some resistance but there is no evidence to that effect on record. We may also note that at that time, age of the accused no.1 Krishna was about 70 years and accused nos. 4 and 5 i.e Ratan and Suvarna are young ladies, in such case, it was very easy for the relatives of the complainant to overpower the accused persons as the relatives of the complainant near the spot were more than double in number. 11. Another important aspect in this case is that the incident occurred on 27.02.2005 in the evening at about 07.00 p.m., however, the F.I.R. is lodged only on the next date at 2.45 pm i.e after more than 18 hours after the alleged incident. It has also come on record that the distance between village Wadle and Phaltan is not much in such case if the incident was true, the FIR would have been lodged much earlier. 8 12.appln2979-10 12. As far as the offence under the Scheduled Caste and Scheduled Tribes (Prevention of Atrocities) Act is concerned, no material has been pointed to us by the learned APP to show that the accused belong to Non-Scheduled Caste or Non- Scheduled Tribes. A necessary ingredient of an offence under this Act is that the aggrieved person should belong to a Scheduled Caste or Schedule Tribe and the accused person should not belong to Scheduled Caste or Scheduled Tribes. This is an absolutely necessary ingredient to make out an offence under this act. The learned APP was unable to point any evidence on this important aspect. 13. Looking to the evidence on record, we are of the opinion that the view taken by the learned Sessions Judge is a reasonable and plausible view, hence, we are not inclined to interfere in the judgment and order of acquittal. In view of the above, leave to file appeal, is refused. Application is rejected. [SMT. RANJANA DESAI, J.] [SMT. V.K. TAHILRAMANI, J.] 9 12.appln2979-10 10