1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY, BENCH AT AURANGABAD CRIMINAL APPEAL NO. 128 OF 1997 The State of Maharashtra through P.S.O. Sangamner, Taluka Police Station .. APPELLANT (Original Complainant) Versus 1. Bhika s/o Laxman Akhade, Age 80 years, Occu.Agri. R/o Karule, Taluka Sangamner, District Ahmednagar 2. Baburao s/o Bhikaji Akhade, Age 60 years, Occu.Hamali, Vendor of Vegetables, R/o Nashik, Taluka Nashik 3. Shivaji s/o Bhikaji Akhade, Age 40 years, Occu.Agri., Karule, Taluka Sangamner, District Ahmednagar 4. Shobhachand s/o Bhikaji Akhade, Age 30 years, Occu.Agri., R/o Karule, Taluka Sangamner, District Ahmednagar 5. Baby w/o Baburao Akhade, Age 45 years, Occu.Nil, R/o Nasik, Taluka Nashik 6. Gorakh s/o Kisan Akhade, Age 30 years, Occu.Agri., R/o Karule, Taluka Sangamner, District Ahmednagar 7. Abdul s/o Ameer Pathan, Age 38 years, Occu.Truck Driver, R/o Karule, Taluka Sangamner, District Ahmednagar .. RESPONDENTS (Orig. Accused) 2 Shri K.G.Patil, Assistant Public Prosecutor for appellant-State Shri R.N.Dhorde, Advocate for respondents 1 to 7 CORAM : P.V. HARDAS AND A.V. NIRGUDE, JJ DATE : 13th November 2009 ORAL JUDGMENT [ PER P.V. HARDAS , J ] 1. By this appeal the appellant-State questions the correctness of the judgment of the Additional Sessions Judge, Ahmednagar, dated 24.1.1997, in Sessions Case No.33/1991, acquitting the respondents-accused of offence punishable under Sections 143, 147, 148, 149, 302 read with 34, 427 read with 34 and 452 read with 34 of the Indian Penal Code. 2. Such of the facts as are necessary for the decision of this appeal may briefly be stated thus. P.W.8 Circle Inspector Shelke was attached to the Police Station, Sangamner as a Senior P.S.I. in July 1990. On 25.7.1990, Crime No.150/1990 was registered on the basis of the report of P.W.1 Dattu at Exh.23. Accordingly, P.W.8 Shri Shelke had drawn the scene of the offence panchnama at Exh.19 in the presence of 3 panchas and had recorded the statements of the witnesses and had arrested the accused. On 26.7.1990, supplementary statement of P.W.1 Dattu came to be recorded. Information was received that injured Deoram had succumbed to his injuries and accordingly, Section 302 of the Indian Penal Code came to be added. Statements of the other witnesses came to be recorded. The investigation thereafter came to be transferred to P.W.9 P.S.I. Borase. The other accused came to be arrested on 16.11.1990. Seized property was referred to the Chemical Analyzer for examination. Further to the completion of investigation, a charge-sheet against the accused came to be filed. 3. Post mortem on the body of deceased Deoram was conducted by P.W.6 Dr.Rajendra Divekar who noticed the following external injuries. 1. Abrasion over right cheek 2” x 2” 2. Abrasion over center at forehead, near hairline of size 4” x 2” 3. Abrasion over the left supra orbital region of size 1” x 1/2” 4. Contused abrasion over vertex of size 2” x 1” 5. Contused abrasion over left parietal region of size 2” x 1”. 4 6. Contused abrasion over occipital region of size 1” x 1” 7. Contusion over left scapular region of size 2” x 1”. 8. Contusion over left shoulder joint superiorly placed of size 1” x 1” 9. Multiple abrasions over left thigh laterally placed over area of 4” x 2”. 10. Abrasion over left inguinal region vertically placed of size 2” x 1/2”. 11. Sutured wound over left ankle, interiorly of size 1” long 12. Two contused lacerated wounds over exterior surface of the left forearm in the middle 1/3 region of size 2” x 1/2” x 1/2” upper and lower was of the size of 1” x 1/2” x 1/2” 13. Contused lacerated wound over web of left thumb and index finger of size 1/2” x 1/2” x 1/4”. 14. Sutured wound over left forearm “U” shaped of size 10” in length 15. Contused lacerated wound over left hypothenar eminence of size 1” x 1” 5 16. Sutured contused lacerated wound over right index finger laterally of size 2” x 1/2” x 1/2”, obliquely placed. 17. Contusion over left arm laterally, middle part (1/3) upper one of size 3” x 1” whereas lower one of size 2” x 2” 18. Contused abrasion over the right shoulder, medially placed of size 1” x 1” 19. Contused abrasion over the right side of acromion of size 2” x 1” 20. Contused lacerated wound on right ankle, laterally placed below malleolus of size 1” x 1/2” x 1/2” 21. Contused abrasion over right scapular region of size 2” x 1” 22. Abrasion over right thigh antro laterally placed 4” below inguinal region of size 1” x 1/2”. He had also noticed that 3rd, 4th and 5th rib on the left side to be fractured. On internal examination, he found hematoma over vertex with blood clots of about 10 cc. He also noticed fracture over the vertex of the skull, which was fissured and running in anterior posterior direction. There was a tear to 6 the left lung 2” x 1/2” x 1/2” and had noticed blood clots. He had also noticed about 100 cc of haemorrhage fluid in the stomach. He therefore opined that cause of death was shock due to intra cranial haemorrhage due to head injury. The post mortem report is at Exh.35. 4. Injured Dattu was examined by P.W.7 Dr.Narendra Nehulkar who noticed the following external injuries. 1. Incised wound on the right side above zygomatic process of size 2 & 1/2” x 3/4” 2. Contusion on the upper lip of size 3” x 1 and 1/2” 3. Superficial abrasion over the nose left side of size 1/2” x 3/4” 4. Severe contusion over the left forearm of size 6” x 4” 5. Fracture of the ulna left middle half X-ray plate number was 664 L. 6. Dislocation of meta carpo phalanged joint thumb, X-ray plate Number was 484 Lt. 7 7. Contusion on left hand of size 3” x 2” 8. Contusion on right thigh of size 6” x 3” 9. Contusion on left thigh of size 4” x 3” 10. Contusion on lumber region of size 5” x 3” 11. CLW vertex of skull of size 5” x 1/2” 12 Fracture of fibula left proximal third X-ray plate number was 687. He opined that injury No.1 was caused by sharp object while the other injuries were caused by hard and blunt object. The injury certificate of P.W.1 Dattu is at Exh.37. 5. Before we deal with the rival submissions of the learned Assistant Public Prosecutor for the appellant and Shri R.N.Dhorde, learned Counsel for respondents 1 to 7, it would be useful to refer to the evidence of P.W. 1 Dattu. P.W.1 Dattu states that at the time of the incident he used to reside in his agricultural land at village Karule, Taluka Sangamner, District Ahmednagar, along with his father, his brother and his mother Dropadabai. He further states that the agricultural land of the accused is adjacent to his land with a common boundary between the two lands. He further states that his relations with the accused were strained on account of the boundary dispute which had been going on for the last 6 to 7 years. He further states that on 25.7.1990 at about 8 9.30 to 10.00 a.m. he, his father and his brother Dnyaneshwar were in the house in the agricultural land. The accused who were armed with weapons entered their house and started assaulting him and his father. His brother Dnyaneshwar was frightened and, therefore, fled from the scene of the offence. All the accused had assaulted Dattu and his father. He further states that accused Baby had clutched his private parts and had pulled them. He also states that the accused dismantled d the walls of his house and had broken the door and had caused damage to the tin sheets. The accused thereafter fled from the scene of the offence. He further states that after about 1 and ½ hours, a Police vehicle had arrived and in the Police vehicle, he and his father were brought to the Civil Hospital at Sangamner. His father Deoram was thereafter sent to the hospital at Nasik. He states that he had lodged his report at Exh.23. In cross-examination he has admitted that the land of the accused is situated towards the Southern side of his land. He has admitted that he had not filed any suit against the accused regarding the boundary dispute. He has also admitted that the accused had also not filed any civil suit against him. He has stated that he does not know if there were litigations between his father and accused Baburao. He has admitted that one case was filed by accused Abdul against him, his father and Goraksha Thamaji but that case had been filed before the incident. He has further stated that the incident lasted 9 for about 3/4th of an hour and on arrival of the Police he and his father had been shifted to the hospital. He has agreed that he and his father had cried for help but none of the neighbours had come to their rescue. Omission has been duly proved that he had not stated in his previous statement about accused Baby holding his private parts and pulling them. Omission has been duly proved that he had not stated in his previous statement about the accused dismantling the walls, braking the door and causing damage to the tin sheets. He has stated that he had not noticed if accused Baburao, accused Shivaji, accused Shobhachand and accused Baby were being treated in the hospital when he was taken to the hospital. He has stated that he does not know if the accused had injuries. He has admitted that a Sessions Case bearing No.32/1991 is pending against him, his father, Dropadabai, brother Dnyaneshwar, uncle Gorakh Thamaji and grandfather Thamaji in respect of the assault on the accused on the same day. He has denied the suggestion that on the day of the incident that over the abuse given by accused Baburao and Dattu in respect of grazing of the cattle, Dattu, his father Deoram, his brother, his uncle and grandfather had assaulted the accused. 6. Prosecution has examined P.W.2 A.P.I. Pachundkar who had recorded the complaint of Dattu and had referred him for medical examination. Prosecution has also examined P.W.3 Macchindra who did not support the prosecution and was declared hostile. 10 Similarly, P.W.4 Bhanudas also did not support the prosecution and was declared hostile. P.W.5 Suryabhan also did not support the prosecution and was declared hostile. 7. P.W.8 Circle Inspector Shelke in cross-examination has admitted as true that on the basis of the report given by accused Baby, offence vide Crime No.149/1990 had been registered. The aforesaid report was given by Baby on 25.7.1990 at about 11.45 a.m. He has admitted that the accused who had sustained injuries had been referred for medical examination. 8. The learned Assistant Public Prosecutor has urged before us that the trial Court ought to have relied upon the testimony of P.W.1 Dattu as the evidence of P.W.1 Dattu is clear and cogent and unequivocally points to the guilt of the accused. The learned Counsel for respondents has urged before us that undisputedly on the basis of the report of accused Baby. P.W.1 Dattu along with his father Deoram (deceased), his brother Dnyaneshwar and his uncle and grandfather were prosecuted for an offence punishable under Section 307 of the Indian Penal Code for having caused injuries to the accused. The prosecution witnesses have not explained the injuries sustained by the accused and, therefore, the very genesis of the incident is doubtful and no reliance can be placed on the testimony of P.W.1 Dattu. 11 9. Perusal of the evidence of the prosecution discloses that apart from P.W.1 Dattu no other witness has been examined in respect of the assault on P.W.1 Dattu and deceased Deoram. The prosecution, therefore, rests its case on the solitary testimony of P.W.1 Dattu. P.W.1 Dattu has admitted that a long standing enmity existed between his family and the family of the accused on account of the dispute of boundary. Dattu has denied that the accused had sustained any injuries. In fact, Dattu and his father and other relatives are being prosecuted for an offence punishable under Section 307 of the Indian Penal Code in respect of the incident on the same day. Dattu has not explained as to how the prosecution witnesses sustained the injuries. It is, no doubt, true that a conviction can rest on the solitary testimony of a single witness. The testimony, however, should be of sterling quality which would inspire the confidence of the Court. In the present case, we find that Dattu cannot be said to be wholly reliable witness and, therefore, in the absence of any corroboration regarding the assault on him and Deoram, no reliance can be placed on his testimony in respect of the genesis of the incident. Trial Court has given benefit of doubt to the accused and has acquitted. With the assistance of the learned Assistant Public Prosecutor for the appellant and the learned Counsel for the respondents, we have perused the findings recorded by the trial Court and upon such perusal we do not find 12 any perversity in reasoning of the trial Court to warrant any interference in this appeal against acquittal. This appeal, therefore, being sans merit is dismissed confirming the acquittal of the respondents. ( A.V. NIRGUDE ) ( P.V.HARDAS ) JUDGE JUDGE vvr/criapeal128.97