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 JURISDICTION CRIMINAL APPELLATE JURISDICTION CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NO.106 OF 1990. CRIMINAL APPEAL NO.106 OF 1990. CRIMINAL APPEAL NO.106 OF 1990. The State of Maharashtra ..Appellant versus 1. Narayan Ambu Shetye 2. Sudam Narayan Shetye 3. Rohidas Narayan Shetye 4. Mahipat Krishna Shetye ..Respondents Mr.F.R.Shaikh, APP for the Appellant Mr.S.P.Kadam & R.B.Kadam for the respondent Nos.1 to 4. Coram : D.G.Deshpande & Coram : D.G.Deshpande & Coram : D.G.Deshpande & S.R.Sathe, JJ. S.R.Sathe, JJ. S.R.Sathe, JJ. Dated : 13th February, 2007 Dated : 13th February, 2007 Dated : 13th February, 2007 JUDGMENT (PER S.R.SATHE, J.) JUDGMENT (PER S.R.SATHE, J.) JUDGMENT (PER S.R.SATHE, J.) 1. The State of Maharashtra has preferred this appeal against the judgment and order passed by the Court of Additional Sessions Judge, Pune in Sessions Case No.629 of 1988 whereby the accused were acquitted of the offences punishable under Section 307, 506(ii), 504 r/w. Sec. 34 of I.P.C. 2. Brief facts giving rise to this appeal are as under: . The accused No.1 Narayan Shetye is the real -2- brother of complainant Laxman Ambu Shetye. Accused Nos.2 and 3 are the sons of accused No.1, while accused No.4 is the nephew of accused No.1. The accused as well as the complainant were residing at village Mandke. Partition had taken place between the complainant and accused No.1 and they were cultivating their lands separately. The land bearing block No.1478 was allotted to the accused No.1 while the block No.1479 was allotted to the complainant. However, the complainant was claiming share in block No.1478 and on that count there was dispute between the complainant on one side and the accused persons on the other side. Not only that, but there was Civil and Criminal litigation pending between them at the time of incident which took place on 2.3.1988 at about 5.00 p.m. 3. It is the complainant’s case that on 2.5.1988 at about 5.00 p.m. when he was returning home by the side of agricultural land of Tulsiram Balku Kinhale, accused Nos.1 to 4 accosted him. The accused No.1 was having a spade in his hand, the accused No.2 was holding a stick while the accused No.3 was having a khil in his hand. The accused No. 4 was also armed with an axe. As soon as the -3- accused accosted the complainant, accused No.3 caught hold of the complainant and then all of them started assaulting him with the weapons which were in their hands. As a result of the said assault, the complainant sustained injury to his right hand. The complainant’s son Hanumant, who was accompanying him at that time tried to intervene. However, the accused gave threat to him. After hearing the shouts of complainant’s son and nephew, Lilabai, the wife of complainant who was working in the sugarcane field situated near the place of offence rushed to the spot. However, the accused abused her and threatened her of dire consequences. Within few minutes, the complainant’s sister in law also reached the place of offence. Then complainant’s son and other persons took him near the cattle shed of Ramdas Shetye and from there he was taken to his house. Immediately thereafter complainant was taken to Jejuri Police Station in a jeep and from there he was taken to Primary Health Centre. The doctor on duty examined the complainant and on finding that he had sustained severe injuries he was sent to Sasoon Hospital, Pune. Then, police recorded the statement of complainant in the hospital and on the basis of the same, offence was registered at C.R.No.28 of -4- 1988 against the accused for the offences mentioned above. 4. Police, then visited the place of offence and drew the panchanama of the place of offence. They also recorded the statements of some other witnesses and arrested the accused on 3.5.1988. Accused produced the weapons used in the commission of the offence and police attached the same under panchanama. They also attached the blood stained clothes of the injured complainant. All the attached property was sent to the C.A. After completion of investigation, police submitted chargesheet against the accused in the court of JMFC, Saswad. 5. Finding that the accused were chargesheeted for the offence punishable under Section 307 of IPC which was exclusively triable by the Sessions Court, the learned JMFC committed the case to Sessions Court, Pune. 6. The learned Addl. Sessions Judge, Pune framed charge-Exhibit 10 against the accused for the offences mentioned above. The charge was read over -5- and explained to the accused. All the accused pleaded not guilty and claimed to be tried. Their defence was of total denial. From the suggestions put to the prosecution witnesses and from the statement of accused recorded under Section 313 Cr.P.C. it appears that it was the contention of the accused that at the relevant time the complainant and his son in fact went to the field of the accused and picked up quarrel and they assaulted the accused with the weapon mentioned above. However, as the accused No.2 filed complaint against the present complainant, with a view to give go by, the said complaint Laxman filed false case against the accused. 7. In order to bring home the guilt of the accused, the prosecution examined in all nine witnesses consisting of P.W.1 Kashinath Dhumal- exhibit 24, panch witness P.W.2. Laxman Kinhale- exhibit 26, another P.W.3 panch witnesws Prakash Phalke - exhibit 28, third panch witness P.W.4 Sopan Mane-exhibit 29, P.W.5 complainant Laxman Shetye-exhibit 31, P.W.6 Dr.Laxman Kharat who examined the complainant at Sasoon hospital -exhibit 33, P.W.7 Dr. Chandrakant Wagh who examined the -6- complainant at Primary Health Centre- exhibit 36, P.W.8 the alleged eye witness Hanumanth Shetye, son of the complainant-exhibit 40, and Investigating Officer P.W.9 PSI Salunkhe-exhibit 41. Prosecution also produced the panchanama of the clothes of the injured exhibit 18, arrest panchanama- exhibit 19, panchanama of the clothes of the accused- exhibit 20, medical certificate of the accused No.2 Sudam-exhibit 21, panchanama of the attachment of the weapons-exhibit 27, complaint -exhibit 32, medical certificate of the complainant-exhibit 34, C.A. report-exhibit 43 and 44. 8. After considering the entire evidence adduced by the prosecution, the learned trial Judge came to the conclusion that there are several contradictions and discrepancies in the prosecution evidence. The prosecution had failed to satisfactorily explain the injuries found on the person of the accused. There was also discrepancy with regard to the place of offence. He, therefore, observed that the prosecution has failed to prove beyond reasonable doubt that at the relevant time the accused persons in furtherance of their common intention tried to commit murder of the complainant -7- by assaulting him. He also held that there is no sufficient evidence to prove the charge under Section 506(ii) and 504 of I.P.C. He, therefore, gave benefit of doubt to the accused persons and acquitted them of all the offences with which they were charged. 9. Being aggrieved by the said order the State of Maharashtra has filed the present appeal. On the date of hearing, the learned advocate for the accused remained absent. So, relying on the judgement of the Supreme Court in the case of Bani Singh and Others vs. State of U.P. 1996 Cri.L.J. 3491, we proceeded to hear the appeal. 11. In this appeal before us, the learned APP has urged three points. Firstly, he submitted that the learned trial Judge has not properly appreciated the evidence on record and has wrongly given undue importance to the discrepancy with regard to the place of offence. Secondly, he canvassed before us that the learned trial Judge ought to have taken into consideration the fact that the accused persons have in fact indirectly admitted the incident because they have contended that at the relevant -8- time the complainant in fact assaulted them. Lastly, he submitted that the learned trial Judge has wrongly disbelieved the evidence with regard to the attachment of the weapon. He, therefore, submitted that the learned trial Judge ought to have held that the prosecution has proved the charge against the accused beyond reasonable doubt. He, submitted that the appeal be allowed and the accused be convicted for the offences with which they are charged. 11. The relationship between the parties is not in dispute. It is also an admitted fact that civil and criminal proceedings were pending between the complainant and the accused when the alleged offence took place. It is in fact admitted that the land bearing block No.1478 was allotted to the share of accused No.1 and the land bearing block No.1479 was allotted to the share of the complainant. Thus, we find that admittedly there is rivalry between the complainant and the accused. So, under such circumstances, the evidence on record shall have to be scrutinized with great care and caution. 12. At the outset, it must be mentioned that in -9- order to prove the guilt of the accused, the prosecution is mainly relying on the testimony of the complainant Laxman Shetye-exhibit 31 and his son Hanumanth Shetye-exhbit 40. It is needless to say that both these witnesses are interested witnesses. Ofcourse, there is no rule of law that interested witness can never be believed. All that is necessary is to assess his evidence with great care and caution. It must be noted that according to the complainant, the incident in question took place near the agricultural land of Kinhale. The time was about 5.00 p.m.. So, under such circumstances, there was every possibility of having some independent witneses at the relevant time, but the prosecution has not adduced evidence of any independent witness. But they are relying only on the testimony of the complainant and his son. 13. The complainant has stated that at the relevant time he had taken his cattle for drinking purpose to the tank No.1 and when he was returning along with his son Hanumanth and nephew Dhanji, the accused accosted them near the agricultural land of Tulsiram Kinhale and then the accused started assaulting him. According to the complainant, the -10- incident of assault took place in Malran behind the cattle shed. However, if we see the panchanama of the place of offence which is at Exhibit____, we find that the place disclosed in the panchanama and the place of offence stated by the complainant in his deposition and complaint exhibit 32 are different. The prosecution has not given any satisfactory explanation about this discrepancy. This discrepancy assumes importance particularly when we find that it is the contention of the accused that at the relevant time the complainant and his son and nephew in fact entered their agricultural land bearing No.1478 and assaulted them. 14. The complainant has stated that at the relevant time, the accused No.1 was having the spade in his hand while the accused No.2 was holding a stick and accused Nos.3 and 4 were having the yokepin and axe respectively. The complainant has also stated that the accused No.3 gave a blow on his left arm while the accused No.2 assaulted him on his back and the accused No.1 gave a blow on his right hand side, as a result of which he sustained a fracture. The complainant has stated that the -11- accused No.4 gave a blow on his head from the backside. The complainant’s son Hanumanth-exhibit 40 has also stated accordingly. However, it is pertinent to note that the complainant has admitted that while give FIR-exhibit 32 he had not stated that accused No.2 gave blow on his back and accused No.1 gave blow on his right hand as a result of which he sustained fracture. He has also admitted that he has not stated before the police that the accused No.3 came from his front side and first caught hold of him and then gave blow on his left arm by yoke pin. Even the complainant’s son Hanumanth has also admitted that the details of the assault stated by him were not disclosed by him to police when his statement was recorded. Both these witnesses have not given any explanation about this discrepancy in their evidence. P.W.8. Hanumanth has even admitted that he had not stated before the police that accused No.2 gave blow on the back of the complainant and the accused No.1 gave blow on right hand of his father by the stick. Similarly, he has not stated before the police that accused No.4 gave a blow with yoke pin on the left hand of the complainant, and as a result of the same he sustained fracture. So, we find that there are -12- material omissions and contradictions in the evidence of these two interested witnesses. Naturally, the learned trial Judge who had in fact an opportunity to see and mark the demenur of the witnesses came to the conclusion that the evidence of this witness is not trustworthy and the same is not sufficient to prove the offences beyond reasonable doubt. 15. Much is made about the fact that when the complainant was examined by Dr. Wagh, at Primary Health Centre, Jejuri, and by Dr. Kharat at Sasoon Hospital, Pune, some injuries were noticed on the person of the complainant. Dr. Wagh noticed the following injuries on his person: i) Contused lacerated wound on the right side parietal area of the scalp, 5" above right ear, vertical 3" X 3/4" scalp deep, I suspect skull fracture. 2. Contusion on the left upper arm on the front side upper 1/3 traverse 3 1/2"X 1" 3. Contusion with abrasion irregular on -13- the right upper arm lower 1/3, 2 1/2" X 1" vertical with irregular abrasion. 4. Punctured wound on the left front middle 1/3 size of 1/4" x 1/4" muscle deep. 5. Contusion on the back left side vertical upper 1/3 4" x 3/4". 6. Contusion on the mid part of back 2 1/2" X 1" vertical on the lower 1/3. 7. Contusion left side base of the mandible 2" X1 1/2" transverse. 8. Contusion with abrasion on the mid back upper 1/3 mid part 2" x 1" transverse. While Dr. Kharat noticed only the following four injuries on the person of the complainant, when he in fact examined the complainant few hours after he was examined by Dr. Wagh. 1. Contused lacerated wound on the scalp 4" x 1". -14- 2. Bruises on the right arm, right forearm, left arm, left forearm. 3. Haematoma on the right forearm. 4. On palpation I detected fracture of right ulna. Firstly, it must be noted that Dr. Wagh noticed as many as eight injuries while Dr. Kharat noticed only four injuries. Merely because the complainant has sustained injuries, we can’t jump to the conclusion that the said injuries have been caused at the hands of the accused and that too in the manner stated by the complainant. It is pertinent to note that it has come on record that on the same day, the accused had also lodged the complaint with police about the alleged incident. Not only that, but it is also clear from the evidence on record and in particular from Exhibit 21 that on 2.5.1988 accused No.2 Sudam was also taken by the police to primary Health Centre and at that time the following injuries were noticed on his person: -15- 1. Contusion with abrasion over back chest rt. sided below scapular region 4cm x 5cm in size. 2. abrasion over rt. forearm flexon aspect middle 1/3 region 3cm x 2cm in size. 3. Lacerated wound over tip of little finger size 1/2cm x 1/2cm in size. So, this indicates that as contended by the accused, they were also assaulted at the relevant time. So it goes to show that at the relevant time scuffle must have taken place between the accused on one side and the complainant on the other. Incidently it must also be noted that even Dr. Kharat -exhibit 33 has stated that the injury No.2 sustained by the complainant is possible during scuffle and the injury No.1 is possible due to fall on rocky place. So, considering this state of evidence, the learned trial Judge has observed that it was necessary for the prosecution witneses to explain the injuries sustained by the accused, but they have not done so. So, under such circumstances, the testimony of the complainant and his son cannot be accepted. It is -16- worth to note that it is well settled that when prosecution witnesses fail to explain the injuries sustained by the accused at the time of the occurrence of the incident, then the court can draw the following inferences: i) That the prosecution has suppressed the genesis and origin of the occurrence and thus not presented the true version. ii) That the witnesses who have denied the presence of the injuries on the person of the accused are lying on the most material point and therefore their evidence is unreliable. iii) That in case there is 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. It has been so held in the case reported in AIR 1976 SC 2263. -17- 16. An attempt is made on behalf of the prosecution to show that the weapons used in the commission of the offence were attached at the instance of the accused. However, if we see the evidence of panch witness Laxman Kinhale, exhibit 26, in this behalf, it is clear that it does not support the prosecution version. Not only that, but even if we see the evidence of the Investigating Officer coupled with the panchanama regarding the attachment of the weapons in question, it is very clear that the accused were not in fact present when the weapons were attached. Moreover, there is no evidence worth the name to show that the accused made a statement before the police that they would point out the weapons concealed and that the same were attached under the panchanama drawn as per the provisions of Section 27 of the Indian Evidence Act. So, the attachment of the weapons in the instant case does not help the prosecution. Though it has come on record that the blood group of the injured complainant was "A" and the blood found on some of the weapon was of "A" group, that by itself, under the circumstances, is of no use to the prosecution. We also cannot ignore the fact that the prosecution has not brought on record the blood group of the -18- accused. This was important, particularly when the accused had also sustained injuries. So, considering all these aspects, we are of the considered view that the learned trial Judge has taken into consideration the entire evidence in its proper perspective. It is well settled that while considering the appeal against acquittal, if it appears to the High Court that the view taken by the learned trial Judge is a possible view then the finding of acquittal should not be disturbed. In the instance case, the findings recorded by the learned trial judge are not shown to be unreasonable, improbable, perverse or illegal. So, under such circumstances, there is no need to interfere with the findings recorded by the learned trial Judge. 17. In this view of the matter, the appeal is dismissed. . Accused are on bail. Their bail bonds stand cancelled. (D.G.Deshpande, J.) (D.G.Deshpande, J.) (D.G.Deshpande, J.) -19- (S.R.Sathe, J.) (S.R.Sathe, J.) (S.R.Sathe, J.)