1 jdk IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPLICATION NO. 5326 OF 2009 (FOR LEAVE TO APPEAL) IN CRIMINAL APPEAL NO. OF 2009 The State of Maharashtra ..Applicant [Ori.Complainant] Vs. Martand Ramchandra Pokharkar and Ors. ..Respondents [Ori.Accused 1 to 12] .... Ms. P.H.Kantharia APP for the Applicant-State .... CORAM : SMT.RANJANA DESAI AND SMT.V.K.TAHILRAMANI, JJ. DATE : 7th APRIL, 2010 P.C. [PER SMT.V.K.TAHILRAMANI,J.]: 1 The applicant-State of Maharashtra has filed this application for leave to file appeal against the judgment and order dated 14.8.2009 passed by the learned Additional Sessions Judge, Pune in Sessions Case No. 273 of 1998. By the said judgment and order, the respondents i.e. original accused nos. 1 to 12 came to be acquitted of the offences under Sections 307, 395, 506 and 504 r.w. 34 of the IPC. 2 The prosecution case briefly stated is that the complainant and the accused are closely related. The land of the complainant is 2 adjoining to the land of accused. There were property disputes between both sides relating to these lands. On 27.2.1997 at about 5.30 p.m. to 6 p.m. the complainant was proceeding by Pimpalgaon-Nidgudsar road near the wood depot of Namdeo Guarav. When he reached near the wood depot, all the accused assaulted him with iron rods, wooden rafters, cycle chain and wooden handle of the axe. The case of the complainant is that accused no.6 tried to strangulate him with the rope. The complainant somehow rescued himself. The complainant has further alleged that in the incident the accused had stolen gold chain, two gold rings and cash amount of Rs.16,000/- and certain documents from him. According to the complainant, he approached the police on 28.2.1997 and lodged the FIR. However, he was not satisfied with the investigation, hence, he filed a private complaint in the the Court of Judicial Magistrate F.C. Ghodegaon for the offence under Sections 307, 395, 504, 506(II) read with Section 34 of the IPC against all the 12 accused. The learned Magistrate called for report under Section 202 of Cr.P.C. from the police. Thereafter, process came to be issued against all the accused under Sections 307, 395, 504, 506(II) read with Section 34 of IPC. The private complaint arising out of RCC No. 54 of 1997 came to be committed to the Court of Sessions vide order dated 20.6.1998. It was numbered as Sessions Case No. 272 of 1998. RCC 3 No. 26 of 1997 arising out of FIR dated 28.2.1997 at the instance of the complainant, was committed to the Court of Sessions vide committal order dated 16.10.2001. It was registered as Sessions Case No. 458 of 2001. Since Sessions Case No. 273 of 1998 and Sessions Case No. 458 of 2001 pertained to one and the same incident, the learned Judge amalgamated both the cases in Sessions Case No. 273 of 1998. 3 Charge came to be framed (Exhibit 28) against all the accused under Sections 307, 395, 397, 506, 504 r.w. 34 of IPC. The charge was read over and explained to the accused to which they pleaded not guilty and claimed to be tried. After going through the evidence, the learned Judge acquitted all the respondents-accused, hence, this application for leave to file appeal. 4 We have heard the learned APP for the applicant-State of Maharashtra. We have perused the judgment and order passed by the learned Additional Sessions Judge. We have also perused the evidence which was 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 Judge does not call for any interference. 4 5 Though the complainant lodged his FIR on 27.2.1997, he has totally disowned the FIR. However, it is pertinent to note that he did not disown his statement (Exhibit 109) recorded by the police authorities at Sasoon Police Outpost on 1.3.1997 while he was admitted in Sasoon General Hospital, Pune. He has stated that police did not mention all names of the accused while recording statement in Sasoon General Hospital and that the police obtained his signature on the statement (Exhibit 109) by force. As far as FIR is concerned, he has stated in his evidence that he did not lodge any FIR at Police Station at Manchar on 27.2.1997. According to the complainant, the police authorities recorded a wrong FIR as his relations with the police officers were strained on account of the complainant taking initiation in closing of the illegal business like selling of illicit liquor in the area. However, this suggestion cannot be found even in his private complaint (Exhibit 105). So also no suggestions to the aforesaid effect were given to the Investigating Agencies. In such case, it is difficult to accept the suggestion of the complainant. If the Investigating Agency had any intention to favour the accused persons they would not have recorded the FIR at all. In the cross-examination, the complainant has admitted that he lodged a private complaint (Exhibit 105) only because the names of the accused 5 were dropped while filing the charge sheet in the Court of Judicial Magistrate F.C. Assuming that the allegations of strained relations between the complainant and the police authorities of Manchar Police Station are believed, however, there is absolutely no reason appearing on record as to why the police authorities at Sasoon Hospital Outpost would record statement of the complainant in a distorted manner as alleged by him. In the statement (Exhibit 109) which was recorded at Sasoon Outpost there are allegations only against the accused nos.1 to 3 and 7. There is no mention of any other accused in the said statement. However, even as far as these accused are concerned, the complainant did not allege any specific overt act against any of these four accused. In his statement (Exhibit 109) he has stated that somebody assaulted him with the chain. Thus, he has not attributed the causing of injuries to any particular accused. In Exhibit 109, he has stated that during the said quarrel, he lost cash amount of Rs. 16,000/-. Again he did not allege in his statement (Exh. 109) that the accused committed robbery of the said amount. The allegations as regards dacoity in respect of gold ornaments including chain and rings are absent in Exhibit 109. The allegation of strangulating the complainant by the accused with the aid of rope is also missing in his statement (Exhibit 109). The allegations in Exhibit 109 are thus completely vague, 6 non specific and generalized in nature. 6 It is pertinent to note that the complainant did not claim that the police authorities in Sasoon Outpost had any grudge against him and that the relations between them were strained. Thus, there is no reason as to why the concerned police official would not record his statement as per his instructions. Further there is nothing on record to suggest that the complainant at any time made any grievance in respect of the aforesaid misdeeds of the police authorities. The said stand of the complainant is thus apparently an after thought. 7 At this juncture, it is to be noted that in respect of FIR lodged purportedly by the complainant on 27.2.1997 charge sheet came to be filed in the Court of Judicial Magistrate F.C. on 26.3.1997. The concerned Investigating Officer submitted report under Section 169 of the Cr.P.C. on 25.3.1997. The private complaint came to be preferred by the complainant on 11.7.1997. It has come in the testimony of the complainant that he filed complaint as soon as he came to know that the names of eight accused were deleted from RCC No. 26 of 1997 in charge sheet filed on 26.3.1997. The charge sheet wherein names of some of the accused were dropped was filed on 26.3.1997. Yet the private complaint was filed only on 11.7.1997. Thus, it is seen that in preferring the complaint (Exhibit 105), there is delay of more than four 7 months. There is no attempt on the part of the prosecution and the complainant to justify or explain the delay so caused in filing the complaint. Thus, the delay is inordinate, unreasonable and unjustified. In this view of the matter, we are of the opinion that the complaint (Exhibit 105) suffers from the vice of after thought and deliberation. 8 In complaint (Exh. 105) in para no.5, the complainant has written that his FIR was recorded by the police authorities at Manchar Police Station when he was unconscious in Primary Health Centre. On careful scrutiny of testimony of the complainant, this stand does not appear to be true in view of below mentioned reasons. 9 It has come in the testimony of the complainant that police recorded his FIR firstly at Primary Health Centre, Ghodegaon. The complainant has denied that he gave any such FIR. While disowning the authorship of the FIR, he has stated that the contents were not narrated by him. In complaint (Exh. 105) it is contended that FIR was recorded while complainant was unconscious in Primary Health Centre. The complainant has further stated that he cannot tell whether he was conscious while admitted in Primary Health Centre, Ghodegaon and Sasoon Hospital, Pune. It has come in the testimony of Dr. Gavali (PW 2) who attended the complainant at Primary Health Centre, Ghodegaon 8 that the complainant was conscious and alert during his stay at Primary Health Centre from 27.2.1997 to 1.3.1997. Similarly, Dr. Jadhav, who treated the complainant at Sasoon General Hospital, also deposed to the aforesaid effect. Thus, the complainant is clearly not speaking the truth. 10 Moreover, if the averment of complainant is accepted that he did not lodge any FIR with police authorities in the intervening night of 27.2.1997 and 28.2.1997 then it needs to be held that the complaint (Exh. 105) is belated by more than four months. There is no justification from the complainant as to why he slept over for the aforesaid period of more than four and half months. The complaint (Exh. 105) is filed after a delay of four and half months without making any efforts to justify and explain the delay. 11 The case of the complainant is also belied by the medical evidence. Though the complainant stated that accused no.6 tried to strangulate him with the aid of rope and other accused assisted him in furtherance of the said act, both the Doctors who examined the complainant, viz. Dr. Gavali (PW 2) and Dr. Jadhav (PW 4) made categorical admissions that no ligature marks were noticed on the neck of the complainant when they examined him. The mention of the use of 9 rope cannot even be found in the statement (Exh.109) which was given by the complainant soon after the incident. Looking to the fact that complaint (Exh.105) is belated, it is seen that there was sufficient time available with the complainant to exaggerate his story to enhance the gravity of the alleged incident. It is already mentioned herein above that there are glaring omissions and variance vis-a-vis complaint (Exh. 105) and testimony of the complainant, if read together with his statement (Exh.109). 12 The injuries on the person of the complainant are simple in nature except injury to tooth. Dr. Jadhav (PW 4) has stated that the injuries on the person of the complainant, cannot be said to be grave and serious and the complainant on his own got himself admitted in Sasoon Hospital. Thus, from the evidence on record, it does not appear that whoever may have caused any injury to the complainant, had any intention to kill him. Hence, it cannot be said that offence under Section 307 is made out. 13 On careful scrutiny of the testimony of the complainant and complaint (Exh.105), there are remarkable variations in the same. In his complaint, it is contended that on account of terror of the accused, 10 nobody came forward to intervene in the quarrel. However, in his substantive evidence, he stated that Baban Pokharkar, Savaleram Rakshe, Vasant Rakshe, Kailas Bhaguji Pokharkar and 25 to 30 other persons intervened in the quarrel and rescued him from the hands of the accused. 14 According to the complainant, the accused assaulted him on account of the quarrel owing to dispute in respect of ancestral property. He has deposed that accused no. 6 directed him to withdraw the case and gave threats at the time of occurrence of the incident. In his testimony, he has given reference of partition cases due to which relations between the complainant and the accused were strained, which resulted in assault by the accused on the complainant. It is, however, revealed from the evidence of the complainant that he did not file any suit for partition. In fact, Civil Suit No. 64 of 1976 was preferred by his father in the Court of Civil Judge J.D. Ghodegaon for partition. Since the case was not filed by him, it would be highly illogical that the accused persons would pressurize the complainant for withdrawal of the same. It would be most rational and logical that the accused would pressurize the father of the complainant and not the complainant. The complainant has further admitted that the suit was compromised between the parties 11 in the year 1980 followed by independent cultivation. He further admitted that since then there was no dispute between himself and the accused till the year 1995. Thus, the motive given by the complainant is also proved to be false. 15 From the answers given by the complainant in his cross- examination, it is revealed that he did not deny the suggestions given to him during his cross-examination. It is seen that he has declined to answer the said questions. From the aforesaid testimony, it is evident that there is more to the incident than the story put forward by the complainant. It is also apparent that the complainant is suppressing certain vital and essential facts in his testimony. Thus, it is revealed from the testimony of the complainant that since the case for partition was not preferred by him, there was no occasion for the accused to compel him to withdraw the same as he has no authority to do so as the suit was preferred by his father. 16 Prosecution has also relied upon the evidence of Kailas (PW 5) and Savaleram (PW 8). As far as the testimony of Kailas (PW 5) is concerned, his name is neither found in the charge sheet of RCC No.26 of 1997 nor in the list of witnesses given in complaint (Exh.105). This 12 being the case, his testimony amounts to total omission and hence, cannot be relied upon. Savaleram (PW 8) is stated to be an eye witness and corroboration is sought to the testimony of the complainant from his testimony. Admittedly, vide order dated 4.2.1998 a report under Section 202 of the Cr.P.C. was called by the learned Judicial Magistrate F.C. in respect of private complaint bearing RCC No. 54 of 1997. It has come in the testimony of the Investigating Officer, ASI Bonderwale (PW 9) that he did not record the statements of witnesses mentioned in the complaint (Exh.105). Savaleram (PW 8) testified that prior to deposing before the Court, he did not report about the incident to anybody including the police authorities. It is for the first time that he disclosed about the incident in the Court. 17 Moreover, Savaleram has stated on oath that on 27.2.1997 at about 5 to 5.30 p.m. he saw one Ganpat, accused nos.1, 6, 7 and 8 along with some female members assaulting the complainant. It is noteworthy that there is no accused by name Ganpat in the present matter. He did not mention names of the female members in his testimony. His deposition to the effect that female members assaulted complainant with stones is a completely novel story which is not even stated by the complainant. His testimony to the effect that the 13 complainant became unconscious on the spot and PSI Jadhav coming to the scene of occurrence and not intervening in the quarrel, is also a completely new story not even fitting in with the complaint and deposition of the complainant. It has further come in his testimony that none of the assailants ran away from the spot despite noticing PSI Jadhav coming to the spot. The entire testimony of Savaleram (PW 8) does not corroborate the version of the complainant. The question further remains that his statement was not recorded by the police authorities nor did he find it necessary to report the matter to the police authorities. His name was also not cited by the complainant in his private complaint. Thus, the testimony of this witness is unreliable, doubtful and untrustworthy. 18 So also, the Supreme Court in the case of C.Anthony Vs. K.G.Raghavan Nair reported in (2003) 1 SCC 1 has observed that while hearing an appeal against an order of acquittal, if two reasonable conclusions can be reached on the basis of evidence on record, the appellate court should not disturb the finding of the trial court. We have already observed that the view taken by the learned Sessions Judge is a reasonable and possible view. Hence, we are not inclined to interfere in the judgment and order of acquittal. 14 19 In view of the above, application for leave to file appeal, is rejected. Consequently, appeal is dismissed. [SMT. RANJANA DESAI, J.] [ SMT. V.K.TAHILRAMANI, J.]