1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY, BENCH AT AURANGABAD CRIMINAL APPEAL NO. 220 OF 1998 1. Vijay s/o Gambhir Patil, aged 27 yrs., 2. Bhausaheb Ananda Patil, aged 40 years, Both r/o Borkhede (Bk), Tq. Chalisgaon, Dist. Jalgaon ..APPELLANTS VERSUS * The State of Maharashtra ..RESPONDENT Mr R.S. Shinde, Advocate for the appellants; Mr K.B. Chaudhari, A.P.P. for the respondent. CORAM : P.V. HARDAS, J. DATE : 28th September, 2010 ORAL JUDGMENT : The appellants/original accused nos.1 & 4, who stand convicted for an offence punishable under section 323 read with section 34 of the Indian Penal Code and sentenced to R.I. for one month and to each pay 2 fine of Rs.1,000/-, in default of which to undergo further R.I. for one month, by the Sessions Judge, Jalgaon, by judgment dated 1st July, 1998 in special Case No.20 of 1996, by this appeal question the correctness of their conviction and sentence. 2. Charge vide Exh.20 was framed against the appellants and other three accused. In respect of offence punishable under section 147 and 323 of the Indian Penal Code, it was alleged that the appellants and the other accused being members of an unlawful assembly and in prosecution of the common object had assaulted P.W.1 Anna and his wife Sushilabai on 8.7.1996 at about 8.00 to 8.30 a.m. In respect of an offence punishable under section 506 read with sec. 149 of the Indian Penal Code, it was alleged that the appellants and the other three accused being members of the unlawful assembly and in prosecution of the common object had committed criminal intimidation by threatening P.W.1 Anna and his wife Sushilabai and abusing them on the basis of their caste and thus had committed the offence also under section 3 (1) (x) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989. The Trial Court by the aforesaid judgment acquitted the other three accused and also acquitted the appellants for offence punishable under sections 147, 506 read with sec. 149 of the Indian Penal Code and under section 3 (1) (x) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act. The Trial Court convicted the appellants for an offence punishable under section 323 3 read with sec. 34 of the Indian Penal Code on the allegations that they had assaulted P.W.1 Anna by giving him fist and kick blows. 3. In order to appreciate the submissions advanced before me by Shri R.S. Shinde, learned Counsel for the appellants, it would be useful to refer to the evidence of P.W.1 Anna. P.W.1 Anna states that he is Hindu and Mang by caste. He states that on the day of the incident he had gone to his land accompanied by his wife Sushilabai and by his nephew Balu. He states that accused no.3 Sambhaji was passing through the land on his bicycle and as a result of which small plants of cotton were trampled upon. Accordingly Sushilabai asked accused no.3 as to why he was passing through the land and upon which the accused abused her on the basis of her caste and slapped Sushilabai. He states that on being informed about the incident he rushed to the scene of the offence and accused no.3 also abused him on the basis of his caste. He then states that his wife had gone to the police station and had lodged a complaint. He states that they returned home from the police station at about 2.00 p.m. On the next day in the morning he was collecting the panch witnesses for the purposes of drawing a panchnama and at about 9.30 a.m. he had gone to the Mahadeo temple for that purpose. His nephew Balu came there and told him that Sushilabai was abused by the accused and, therefore, he went home and on his way he stopped near the shop of one Bhaskar Patil. He noticed the accused who were present there, namely accused no.1, accused no.3 and accused no.4. 4 On seeing him they abused him on the basis of his caste and all the five accused surrounded him and started assaulting him. They assaulted him with fist and kick blows due to which he became unconscious. He states that thereafter his wife Sushilabai had gone to the police station at about 11.00 to 11.30 a.m. and had brought the police. He was thereafter taken to the hospital and later on shifted to the Civil Hospital at Jalgaon. He states after he was discharged he lodged his complaint at Exh.37. Incidentally, the complaint at Exh.37 was lodged on 15.7.1996 on the basis of which an offence vide Crime No.90 of 1996 under sections 143, 147, 149, 323, 504, 506 of the Indian Penal Code and under section 3 (1) (x) of the Scheduled Castes & Scheduled Tribes (Prevention of Atrocities) Act came to be registered. In cross-examination omission has been duly proved that he had not stated that his nephew Balu had called him and so he had gone near the place where his wife was assaulted and thereafter he was abused. Omission has been duly proved that he had not stated that accused nos.1, 3 & 4 had stated that he should be caught and assaulted. He has further stated that he could not tell as to how many persons had gathered near the place of the incident where he was assaulted. He has admitted that one P.S.I. had come in the hospital but admits not to have informed either the P.S.I. or the Doctor or other police officers about the incident. In the evening he had stayed at the house of his father-in-law with the consent of the Medical Officer. 5 4. Prosecution has examined P.W.4 Dr. Chavan, who had examined P.W.1 Anna on 8.7.1996, at about 12.40 p.m. He states that he had examined and treated him for the following injuries :- 1. Blunt injury over abdomen. Tenderness present; 2. Blunt injury over abdomen. Tenderness present; 3. Blunt injury over back of neck. Tenderness present; 4. Blunt injury over back. Tenderness present over lumber region; 5. Blunt injury over chest. Tenderness present over sternal region. He had accordingly issued the certificate at Exh.45. In cross-examination he has admitted that the injuries were simple. He has further admitted "in blunt injury, there is no visible injury. Only there is pain and tenderness. It is possible that a person may feign tenderness and pains. Whenever we press a part and a patient complains, we presume there is tenderness. It cannot be made out whether really there is tenderness or not." Curiously, this Doctor does not state that P.W.1 Anna was unconscious when he was brought to the hospital. 5. Prosecution has examined P.W.3 Suresh, brother of P.W.1. He states that on 8.7.1996 he was near the temple and there were 2-3 persons present there. He states that near the temple there is a grocery shop of Bhaskar Patil. He states that there was a quarrel between P.W.1 Anna and the accused. All the accused were assaulting his brother Anna 6 and they assaulted him with fist blows. He further stated that they had abused him on the basis of caste also. He has admitted not to have stated that Anna had become unconscious. He has admitted that after the incident Sushilabai, wife of P.W.1 Anna had gone to the police station. 6. Prosecution has also examined P.W.5 Balu, who speaks about the incident in the morning of 7.7.1996 where accused no.3 is alleged to have abused and slapped Sushilabai. He states about Sushilabai going to the police station and lodging a complaint. He then states about the assault on his grandfather and grandmother by the accused and also assault on Sushilabai. He states that thereafter he had gone to call his uncle P.W.1 Anna and brought his uncle from the Mahadeo temple. He states that as soon as P.W.1 Anna came near the shop of Bhaskar Patil, all the five accused assaulted him with fist and kick blows. The accused also abused him on the basis of caste. Omission has been duly proved that he had not stated that in respect of the incident on 7.7.1996 he was stating for the first time that accused no.3 was passing through the land on a bicycle. 7. P.W.6 P.S.I. Ghule, the Investigating Officer has admitted that a complaint was received on 7.7.1996 and the complaint had been lodged by Sushilabai. He then states that P.W.1 Anna had lodged a complaint on 15.7.1996. He admits that when he had gone to the scene of offence P.W.1 Anna was unconscious and, therefore, he was taken to 7 the hospital. In cross-examination he has admitted that on 8.7.1996 a complaint had been lodged by Sushilabai, which was recorded by A.S.I. Sonar, but it was treated as an N.C. complaint. He had volunteered to produce the N.C. register. He has further admitted in the cross- examination that he had met P.W.1 Anna in the hospital but P.W.1 did not disclose anything to him. He has also admitted that the relatives of P.W.1 Anna had also not disclosed anything to him about the incident. He has also admitted that no one had come to the police station for lodging a complaint. 8. The Trial Court at paragraph 10 has observed that in respect of the complaint lodged by Sushilabai on 7.7.1996, the aforesaid complaint was not produced before the Court. The Trial Court further observed that even a complaint dated 8.7.1996 lodged by Sushilabai after the assault on P.W.1 Anna was not produced in Court. Further, the extract of the N.C. register was produced in the Court and perusal of the same disclosed that Sushilabai had alleged that only three persons had assaulted P.W.1 Anna. Sushilabai had made no reference to any abuses on the basis of caste. In the complaint lodged on 15.7.1996 by P.W.1 Anna, he had alleged assault at the hands of five accused and also abuses by all the five accused on the basis of caste of P.W.1 Anna. The Trial Court, therefore, acquitted all the accused in respect of the allegations under the Atrocities Act and also acquitted the other accused but convicted the present appellants. 8 9. The substratum of the prosecution case against the five accused has been disbelieved by the Trial Court. The Trial Court has acquitted the accused in respect of assault on Sushilabai on the morning of 7.7.1996 as well as the assault on Sushilabai, grandfather and grandmother of P.W.5 Balu. The Trial Court has acquitted three accused in respect of the assault on P.W.1 Anna on 8.7.1996. Sushilabai had immediately lodged a complaint before the police on 8.7.1996 wherein she had alleged assault on P.W.1 by three accused. P.W.1 Anna had filed a complaint on 15.7.1996, i.e. seven days after the incident in which he had alleged assault on him by five accused as well as abuses by the five accused on the basis of caste of P.W.1 Anna. The Trial Court has found Anna to be an unreliable witness. It is true that in cases where the truth and falsehood are mixed up, the Court should endeavour to separate the grain from the chaff i.e. the truth from the falsehood. In the present case the entire prosecution case is riddled with falsehood and exaggeration. Since benefit of doubt has been given to three accused, according to me the appellants also would be entitled to be given the same benefit of doubt. P.W.1 Anna is not a witness on whose testimony the Court can implicitly place reliance for sustaining the conviction of the appellants under section 323 of the Indian Penal Code. In the absence of any corroborative evidence from independent sources, it would be extremely difficult to sustain the conviction of the appellants. P.W.1 Anna has proved himself to be a liar and the Trial Court has extended the benefit of doubt 9 to three accused. In such circumstances, therefore, according to me the conviction of the appellants is unsustainable and deserves to be quashed and set aside. 10. Accordingly, this Criminal Appeal is allowed and the conviction and sentence of the appellants is hereby quashed and set aside and the appellants are acquitted of the offence with which they were charged and convicted. Their bail bonds stand cancelled. Fine, if paid by the appellants, be refunded to them. ( P.V.HARDAS, J.) amj/cria220.98