1 Cri.Appeal No.265/1996 IN THE HIGH COURT OF JUDICATURE OF BOMBAY BENCH AT AURANGABAD CRIMINAL APPEAL NO.265/1996.(AURANGABAD) CRIMINAL APPEAL NO.270/1993 (BOMBAY) The State of Maharashtra = APPELLANT VERSUS 1) Hiraman Shamrao Bhil Age:32 Yrs. 2) Pralhad Shankar Marathe Age: 45 Yrs. 3) Gopichand Luka Bhil Age: 35 Yrs. 4) Natha Rupla Bhil. Age: 35 Yrs. 5) Garbad Dalga Marathe Age: 50 Yrs. 6) Dharsing Rupla Bhil Age: 32 Yrs. 7) Uttam Daga Bhil Age: 22 Yrs. 8) Bhikan Chindga Marathe Age: 35 Yrs. All r/o Velhane, Tq. Dhule, Dist. Dhule. = RESPONDENTS Mrs.SD Shelke, APP for Appellant/State Mr.B.R.Warma, Advocate for Respondents Nos.1, 4 to 8 ; 2 Cri.Appeal No.265/1996 ----- CORAM : A.H.JOSHI & A.R.JOSHI,JJ. DATE : 22nd September, 2011. JUDGMENT (PER :A.R.JOSHI,J.) 1) Heard rival submissions on this Criminal Appeal preferred by the State of Maharashtra, challenging the judgment and order of acquittal dated 3rd February, 1992, passed by 4th Additional Sessions Judge, Dhule in Sessions Case No. 42/1990. 2) By the impugned judgment and order, all the eight accused persons were acquitted of the offence of rioting, armed with deadly weapons, punishable under Section 307, 506, 323 of Indian Penal Code. 3) The case of prosecution, in nutshell, is as under:- (i) One Rajendra and his brother Shivaji were milking their cattle in the dairy at village Welhane Tq. Dhule in the evening of 24th September, 1989. That time, all the accused persons came to the spot, armed with sticks and axes, and assaulted these two persons causing them injuries. 3 Cri.Appeal No.265/1996 (ii) Rajendra was assaulted by means of axe; whereas Shivaji was assaulted by means of sticks. (iii) After the incident of assault, all the accused ran away from the spot. Allegedly this incident was witnessed by PW No.6 - Lotan Wagh and PW No.7 – Sahebrao, who allegedly then intervened and tried to rescue the victims. (iv) After the incident of assault, immediately within few hours, i.e. at about 8.00 p.m. or so, on the same night, one Madhukar Chambhar was also assaulted by the accused persons by means of axe causing him injuries. (v) Apparently, initial charge was framed against the accused persons for the offence punishable under Sections 302 and 323 of IPC and for rioting, armed with deadly weapons for assault on Rajendra and Shivaji. Subsequently, the charge was amended and accused were also charged for assault on Madhukar Chambhar and thereby committing offence punishable under Section 307 r/w Section 149 of IPC. 4) During the trial, total 10 witnesses were examined. Out of them, important witnesses are : PW No.6 Lotan Hari Wagh; PW No.7 Sahebrao Bajrang Wagh and PW No.8- Shivaji Bhaga Wagh, who 4 Cri.Appeal No.265/1996 are allegedly the eye-witnesses to the incident and out of them, PW No. 8 - Shivaji was himself injured. 6) Injured Rajendra Wagh, who lodged the FIR regarding the incident, died during the pedency of the case and as such, he could not be examined. 7) Another injured – Madhukar Chambhar also could not be examined as he much later died in an accident and not due to any injury sustained by him in the alleged assault. PW No.5 – Madhkar Shrawan Deore is the panch witness for seizure of axes from accused Nos. 1, 2 and 4. PW No.9 – Dr.Puri, who examined the injured Rajendra and Shivaji and gave medical certificate accordingly. PW No.1 is Special Executive Magistrate one Sardarsing Budhesing Bhise, who recorded the statement of then injured Madhukar Chambhar at about 1.45 p.m. On the next day of the incident, i.e. He recorded the statemnet on 25th September, 1989. 8) We have gone through the substantive evidence of the prosecution witnesses and mainly the important witnesses mentioned above. We have observed that various circumstances, as established from the substantive evidence of 5 Cri.Appeal No.265/1996 these witnesses, weighed with the learned Sessions Judge in arriving at the conclusion of the acquittal of all the accused persons. At this juncture, it may be mentioned that original Accused Nos.2 and 3, who are the present Respondent Nos.2 and 3, died during pendency of the appeal and as such, the present Respondent Nos.1 and 4 to 8, are the only respondents against whom the present appeal lies. 9) The circumstances, which weighed with the learned Sessions Judge, are listed hereunder:- (a) PW No.8 – Shivaji did not attend the police station though allegedly he was assaulted along with his brother Rajendra. Only Rajendra went to the police station and lodged his complaint; (b) PW No.6 – Lotan Wagh allegedly witnessed the assault while he was on his way going to his home from his field. However, it is brought on record that the spot of offence, i.e. The dairy in which the assault took place, is not on way from his field to his house; (c) PW No.6 – Lotan Wagh did not intervene 6 Cri.Appeal No.265/1996 the incident as admitted by him in his substantive evidence though he allegedly witnessed the incident; (d) There is variance in evidence of PW No.6 – Lotan Wagh and PW No.8 – Shivaji as to actual assault on Shivaji. Moreover, said Shivaji was not sent for medical examination and no medical certificate is produced to that effect; (e) PW No.6 – Lotan Wagh is relative of PW No.8. Moreover, PW No.7 – Sahebrao is also cousin brother of PW No.8 – Rajendra. However, this fact has been denied by PW No.7 having any such relations with Rajendra and Shivaji. (f) According to PW No.7 – Sahebrao, there were about 50-100 persons gathered on the spot. However, apart from the relations of the injured persons, none else was examined by the prosecution though admittedly, the independent witnesses were available and present. (g) Alleged motive is not established by the prosecution inasmuch as according to the prosecution witnesses, prior to the assault 7 Cri.Appeal No.265/1996 on Rajendra and Shivaji, the accused persons had accosted Rajendra and had enquired with him as to why he had lodged the complaint against them with the police. On this aspect, as per the substantive evidence of the Investigating Officer (PW No.10) no such complaint was lodged by either Rajendra or by Shivaji. (h) Alleged statement of Madhukar Chambhar cannot be taken as trustworthy inasmuch as the Medical Officer was not examined regarding the condition of Madhukar and regarding his injuries. (i) Recovery of axes, allegedly at the instance of accused Nos.1, 2 and 4, is doubtful inasmuch as panch witness – PW No.5 did not mention anything regarding memorandum statement given by Accused No.4. So also, he does not mention regarding any recovery at the instance of Accused Nos.2 and 4. (j) It is highly improbable that the accused persons would keep blood-stained axes in their houses so that they can be subsequently recovered on their alleged statements. (k) One independent person by name Rajendra 8 Cri.Appeal No.265/1996 Karansingh intervened the said incident as per the evidence of witnesses, however, he was not examined and as such, resulting in drawing adverse inference against the prosecution. 10) Accused No.5 had examined defence witnesses to prove his alibi as he was not present on the spot or in the village at the relevant time and date of incident. 11) We have gone through the substantive evidence of the prosecution witnesses and the reasoning given by the learned Sessions Judge so far as entertaining the doubt regarding authenticity of the case of the prosecution, in view of the above listed circumstances. In doing so, we found that there is nothing to come to the different conclusion than that which has been arrived at by the learned Sessions Judge. In other words, it must be said that in the present matter, there is nothing to entertain the submissions on behalf of the Appellant/State of Maharashtra, so as to view the matter differently and to reverse the judgment and order of acquittal. 12) In the result, there is no merit in the appeal preferred by the State of Maharashtra and 9 Cri.Appeal No.265/1996 the same is accordingly disposed of with following order: ORDER Criminal Appeal No.265/1996 stands dismissed. sd/- sd/- (A.R.JOSHI,J.) (A.H.JOSHI,J.) bdv/ Authentic copy (BD VADNERE,PS)