:1: IN THE HIGH COURT OF JUDICATURE AT BOMBAY IN THE HIGH COURT OF JUDICATURE AT BOMBAY IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE SIDE CRIMINAL APPELLATE SIDE CRIMINAL APPELLATE SIDE CRIMINAL APPEAL NO.866 OF 2001 CRIMINAL APPEAL NO.866 OF 2001 CRIMINAL APPEAL NO.866 OF 2001 State of Maharashtra ...Appellant. v. 1. Krishna @ Thorappa Ambaji Jadhav Age 72 yrs., 2. Babasaheb Krishna Thorappa Jadhav Age 30 yrs., 3. Pramod Manohar Jadhav, Age 19 yrs., 4. Jayram Ambaji Jadhav, Age 60 yrs., 5. Karunabai Chandrakant Jadhav Age 40 yrs., 6. Bagabai Suresh Jadhav Age 26 yrs., 7. Sou. Mangal Babasaheb Jadhav Age 32 yrs., 8. Manohar Dadarao Jadhav Age 45 yrs., All residents of Kasegaon, Tal:South Solapur, Dist.Solapur ...Respondents. Mr.Y.M.Nakhawa, APP for the Appellant/State. Mr.V.V.Purwant , adv. for the Respondent Nos.1 to 8. CORAM: CORAM: CORAM: R.V.More,J. R.V.More,J. R.V.More,J. DATE: 26th March, 2009. DATE: 26th March, 2009. DATE: 26th March, 2009. ORAL JUDGMENT: ORAL JUDGMENT: ORAL JUDGMENT: 1. The State of Maharashtra takes exception to the impugned judgment and order dated 2.7.2001 passed by the Assistant Sessions Judge, Solapur in Sessions Case No.230 of 2000 recording the respondent nos.1 to 8’s acquittal for the offences punishable under Sections 147, 148, 323, 324, 504, 506 read with Section 149 of the I.P.C. :2: 2. Prosecution case in brief was as follows: . Complainant Rajkumar resides with his brother Ravindra, mother Malanbai and sister-in-law Sunita at Village:Kasegaon. They cultivate their ancestral land, which was given to them by the Government as ’Mahar Vatan’. However, the Respondent Nos.1 to 4 were not allowing them to cultivate that land. Prosecution story further proceeds that on 13th September, 1999 at about 11.00 a.m. complainant Rajkumar, his brother Ravindra were proceeding towards their land and when they reached near the land of one Khare, at that time, the respondent nos.1 to 8 gathered there. All of them were holding weapons, namely, iron bar, axe, chopper, dagger, sickle and sticks. They threatened to kill complainant Rajkumar and his family members if they come to the land. All the accused assaulted Rajkumar and Ravindra, at that time their mother Malanbai and Sunita came there to rescue them but accused beat them also. In that assault Rajkumar sustained the injuries at his hands, legs and head. Ravindra also sustained injuries on his both hands and back. Sunita was injured at left arm and at chest. Sister-in-law of complainant by name Chandrabhaga Arun Jadhav and his nephews Trishal and Vishal also came there and the accused beat them also. Rajkumar, Ravindra, their mother and Sunita went to Civil Hospital, Solapur. Medical treatment was given to :3: them. Rajkumar lodged the report against the accused, on the same day. On the basis of this report, C.R.No.86 of 1999 came to be registered. Investigation Officer thereafter prepared spot panchanama and arrested accused no.8 on the same day. It is alleged that the accused no.2 produced weapons, namely four sticks, which were allegedly used for commission of offence. Statements of the witnesses were recorded. After completion of investigation, respondents were put for trial. It appears that in the same incident, accused nos.1 and 8 were seriously injured and they filed complaint against P.W.2, 3 and others under Section 307 of the I.P.C. In that case, charge-sheet against these witnesses was submitted in the Sessions Court which is numbered as Sessions Case No.20 of 2000. In that view of the matter, the present case was transferred to the Sessions Court and numbered as Sessions Case No.230 of 2000. 3. Charge was framed against the respondents/accused for the offences punishable under Sections 147, 148, 323, 324, 504, 506 read with Section 149 of the I.P.C.Charge was explained to the respondents in vernacular to which they pleaded not guilty and claimed to be tried. Defence of the respondents was that of total denial. 4. Prosecution in order to bring home the guilt of the respondents, examined six witnesses, namely, P.W.1 :4: Dr. Dnyandeo Bhagwan Kemkar, who examined the complainant (P.W.2), his mother Malanbai as well as accused nos.1 and 8, P.W.2 Rajkumar Jadhav/Complainant, P.W.3 Ravindra Jadhav brother of the complainant and eye witness, P.W.4 Maruti Mhatre panch to the arrest panchanama, P.W.5 Police Constable Shivaji Harane who recorded F.I.R. and P.W.6 PSI Navnath Ghogare. Prosecution also relied upon documentary evidence namely, F.I.R. Exhibit 23, panchanama of the scene of offence at Exhibit 18, Arrest panchanama at Exhibit 19, Medical certificates at Exhibits 20 and 21, seizure panchanama of stick and wooden piece at Exhibit 27 and certified copies of the Revenue Appeal No.1 of 1995 dated 29.11.1997. 5. Learned Assistant Sessions Judge at Solapur after appreciating the evidence led by the prosecution on record and after hearing the learned counsel for the respective parties, concluded that the prosecution failed to establish the offences against the respondents for which they were charged and consequently, acquitted all of them. 6. Mr.Nakhawa learned APP submitted that there is enough evidence on record to prove respondents’ complicity in the offences alleged against him. He also submitted that P.W.2 Complainant and P.W.3 brother of the complainant both injured eye witnesses deposed about :5: the alleged incident and there is corroboration from P.W.1 Doctor to their evidence and, therefore, order of acquittal by learned Assistant Sessions Judge is wrong. 7. Mr.Purwant learned counsel for the respondents on the contrary supported the impugned judgment and order. He submitted that admittedly, there was civil dispute pending between the parties and in pursuant of the order of Tehsildar, names of the respondents were recorded in the record of rights of the land which the complainant claimed of their ownership. He further submitted that incident dated 13.9.1999 occurred because of civil dispute. He also submitted that the prosecution failed to bring on record material evidence. He lastly submitted that in an incident, accused nos.1 and 8 also received fatal injuries for which P.W.2 and 3 were charged and convicted under Section 307 of the I.P.C. Prosecution not at all explained the injuries on the accused nos.1 and 8 and, therefore, benefit of doubt must be given to them. 8. Having gone through the depositions of the witesses, documentary evidence on the record and having heard the learned counsel for the respective parties, I do not find any merit in the appeal. As stated above in order to establish charge against the respondents, prosecution examined six witnesses and out of that evidence of P.W.2 and 3 being injured eye witnesses and :6: the evidence of P.W.1 Medical Officer is important. Both P.W.2 and P.W.3 deposed that they were going to their land gat no.384 through the land of one Khare. The respondents armed with various weapons threatened to kill them and assaulted. They further stated that their mother Malan, wife of P.W.3 Sunita and others also intervened. However, respondents assaulted them also and they received injuries. P.W.1 Medical Officer Dr. Dnyandeo Bhagwan Kemkar deposed that he examined P.W.2 Complainant and Malanbai on 13th September, 1999. He further deposed that he found two contusions on the person of Malanbai Jadhav and further three simple injuries on the person of P.W.2 Rajkumar. He also deposed that on the same day, he examined respondents/accused nos.1 and 8. He testified that respondent no.1 was having head injury. He stitched the same and treatment was given to them. So far as the respondent no.8 is concerned, he received stab injury on his abdomen for which he was operated. He deposed that injury on the person of respondent nos.1 and 8 were grievous in nature and if the timely treatment was not given, they would have died. 9. It is the specific case of the prosecution that in an incident Malan, Sunita, Chandrabhaga, Trishal, Vishal and niece of Rajkumar also assaulted by the respondents and they received injuries. These persons witnessed the incident and accordingly were material :7: witnesses. Failure of prosecution to examine them creates doubt in prosecution story. Similar view is taken by the learned Assistant Sessions Judge. 10. It is the specific case of the prosecution that P.W.3 Ravindra got injuries in an incident at the hands of the respondents. He has specifically in his deposition stated that respondent no.8 Manohar gave blow of dagger and axe to him and he received injury on head, forearm and back. Dagger and axe are the dangerous weapons and if P.W.3 Ravindra received injuries with these weapons definitely he would have sustained serious injuries. Ravindra, however, was not examined by any Doctor nor his medical certificate was brought on record. Prosecution failed to bring on record whether Ravindra was examined by the Doctor nor his medical certificate was brought on record. This creates great doubt about the presence of P.W.3 Ravindra and about the allegations that he received injuries by the respondents in an incident dated 13.9.1999. 11. Most important aspect is that P.W.1 Doctor examined the respondent no.1 and 8 on 13th September, 1999, i.e. on the day of the incident. He found that the respondent no.1 sustained head injury and respondent no.8 sustained stab injury on his abdomen. Both the injuries were grievous in nature. Prosecution not at all explained serious injuries caused to respondent :8: nos.1 and 8. I do not find any error in the approach adopted by learned Sessions Judge. Learned Sessions Judge relied upon the decision of the Apex Court in Kashinath Ramchandra Patil v. State of Maharashtra Kashinath Ramchandra Patil v. State of Maharashtra Kashinath Ramchandra Patil v. State of Maharashtra 2001(1) Crime 332 2001(1) Crime 332 2001(1) Crime 332 and held that it was obligatory on the part of prosecution to explain the injuries which were on the person of respondent nos.1 and 8. The learned Sessions Judge in view of her explanation of injuries on the person of respondent nos.1 and 8 was pleased to give benefit of doubt to respondents. I do not find any error in the approach adopted by learned Sessions Judge. The Apex Court in paragraph 11 in Lakshmi Singh and Lakshmi Singh and Lakshmi Singh and Others v. State of Bihar AIR 1976 Supreme Court 2263 Others v. State of Bihar AIR 1976 Supreme Court 2263 Others v. State of Bihar AIR 1976 Supreme Court 2263 made following observations: "11........................It seems to us that in a murder case, the non-explanation of the injuries sustained by the accused at about the time of the occurrence or in the course of altercation is a very important circumstance from which the Court can draw the following inferences: (1) That the prosecution has suppressed the genesis and the origin of the occurrence and has thus not presented the true versions; (2) that the witnesses who have denied the presence of the injuries on the person of the accused are lying on a most material point and therefore their evidence is unreliable; (3) that in case there is a defence version which explains the injuries on the person of the accused it is rendered probable so as to throw doubt on the prosecution case. The omission on the part of the prosecution to explain the injuries on the person of the accused assumes much :9: greater importance where the evidence consists of interested or inimical witnesses or where the defence gives a version which competes in probability with that of the prosecution one." 12. In my view, above observations of the Apex Court are applicable to the present case. In the present case since the prosecution failed to explain the injuries on the person of accused nos.1 and 8, inference requires to be drawn that the prosecution has suppressed genesis and origin of occurrence and thus, not presented true version. This is specially when the P.W.2 and 3 are interested witnesses and, there was civil dispute pending between the respondents and complainant. 13. I find that the view taken by learned Assistant Judge is a possible view and it is not permissible to substitute the same by another possible view. There is no merit in the appeal. 14. Appeal stands dismissed. (R.V.MORE, J.) (R.V.MORE, J.) (R.V.MORE, J.)