1 APPLN-G-54.11 IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE CRIMINAL APPLICATION NO.54 OF 2011 The State of Maharashtra .... Applicant Vs. Anil Sadanand Shelar & Anr. .... Respondents Ms M.M. Deshmukh, APP,for the Applicant- State. Shri K.H. Holambe Patil for the Respondents. WITH CRIMINAL APPLICATION NO.1655 OF 2010 Ashok Sakharam Ubale & Ors. .... Applicants Vs. The State of Maharashtra .... Respondents AND CRIMINAL APPLICATION NO.1656 OF 2010 Ashok Sakharam Ubale .... Applicant Vs. The State of Maharashtra & Ors. .... Respondents Shri Prakash Naik for the Applicants in CAs-1655 and 1656 of 2010. Ms M.M. Deshmukh, APP, for the Respondent- State in CAs-1655 and 1656 of 2010. 2 APPLN-G-54.11 CORAM: R.C. CHAVAN, J. DATED: AUGUST 01, 2011 P.C: 1. Criminal Application No.54 of 2011 is filed by the State seeking leave to file appeal against acquittal of the accused persons in Sessions Case No.68 of 2008 ordered by the learned Additional Sessions Judge, Palghar. While Criminal Application No.1656 of 2010 is filed by the first informant on whose report the prosecution was launched for a similar prayer, Criminal Application No.1655 of 2010 seeks quashing of the part of the operative order whereby the applicants therein were directed to show cause as to why they should not be convicted for the offence punishable under Section 182 of the IPC. The first informant Ashok Sakharam Ubale was working as a Talathi at Boisar since 2002. The accused persons who claim to be working as journalists seem to have filed complaints against the said Ubale in the past. Ubale was transferred out of Boisar in 2005 but his transfer got cancelled. Both Ubale and his superior Navnit Narottam Patil, who was examined as PW-1, admitted that the accused persons had been making complaints 3 APPLN-G-54.11 against them. On 22-4-2008 the accused persons are alleged to have approached the first informant at about 6:30 p.m. for copies of some 7 x 12 extracts. The first informant informed them that the office hours were over and asked them to come on the next day. Thereafter the accused persons are alleged to have given caste-based abuses to the first informant in the presence of Navnit Narottam Patil, Revenue Inspector and Shashikant Nana Patil, Talathi of another village, who was also present at the office. One Pradip Vasudeo Raut who had come to the office for making some inquiries had also witnessed the incident. On the report of the Ubale, an offence was registered and the investigation commenced. After completion of the investigation, charge-sheet was filed in the Court of Judicial Magistrate, First Class, which eventually reached the Court of Additional Sessions Judge, Palghar. The learned Judge charged the accused persons for the offences punishable under Section 353 of the IPC and Section 3(1)(x) of the Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act. After considering the prosecution evidence in the light of the defence of alibi by one of the accused persons, he acquitted both the accused persons and asked 4 APPLN-G-54.11 the prosecution witnesses to show cause as to why they should not be convicted for the offence punishable under Section 182 of the IPC. 2. I have heard the learned APP for the State, the learned counsel for the first informant as well as the prosecution witnesses and the learned counsel for the accused. The learned APP has made available for my perusal copies of depositions of the prosecution witnesses. It cannot be said that the learned trial Judge erred in refusing to believe the evidence of PW-1 Navnit Narottam Patil, PW-2 Ashok Sakharam Ubale, PW-3 Shashikant Nana Patil and PW-4 Pradip Vasudeo Raut. PWs-1 and 2, who belong to the same Department, categorically state that the accused persons had repeatedly made applications against Ubale, Navnit Patil and Shashikant Patil and that their superior used to call for their explanation. Therefore, it is not unnatural that these persons had an axe to grind and sought an opportunity to have the accused persons prosecuted. The view taken by the learned Judge as far as the evidence of these three witnesses is concerned cannot be said to be improbable or perverse. As far as PW-4 5 APPLN-G-54.11 Pradip Raut is concerned, he curiously states that he had gone to the Talathi's office for preparing a ration card of his friend, an altogether irrelevant errand. He states that in his presence, before giving the abuses, there were no exchange of any talk. While in his statement before the police he had stated that he had hotel business as well as a fair price shop, he denied that he had any fair price shop or a beer-bar. Therefore, as far as even this witness is concerned, since his presence at the spot itself is doubtful, the learned Judge cannot be faulted for rejecting his evidence. Since the learned Judge had the opportunity of seeing all these four witnesses in person, his appreciation of their evidence, which is neither improbable nor perverse, does not call for any interference. 3. However, the learned Judge should have seen that in the absence of any concrete material to show that the witnesses were definitely lying or giving false evidence, he should not have ventured into asking the witnesses to show cause why they should not be punished under Section 182 of the IPC. Not believing witnesses because their evidence does not strike as reliable is one thing and holding 6 APPLN-G-54.11 that the witnesses were positively lying is another thing. For holding that a witness is lying there has to be some unimpeachable evidence. The learned Judge should have seen that such evidence would not be a matter of conclusion merely because the learned Judge refused to believe the witness. The gap between not believing a witness and believing the witness to be a liar is same as between not proved and disproved. Therefore, the direction of the learned Judge to the witnesses to show cause as to why they should not be punished for the offence punishable under Section 182 of the IPC has to be quashed. In view of this, Criminal Application Nos.54 of 2011 and 1656 of 2010 are rejected. Criminal Application No.1655 of 2010 is allowed. The order of the learned Judge asking the applicants therein to show cause as to why they should not be punished under Section 182 of the IPC is quashed and set aside. (R.C. CHAVAN, J.)