1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTON CRIMINAL APPEAL NO.584 OF 1990 The State of Maharashtra .. Appellant V/s 1. Dilip Dattatray Bandgar, Age about 20 years, Occ.Agriculture, Resident of Madanwadi Bhigwan, Tal.Indapur, Dist: Pune. 2. Baban Dattatray Bandgar, Age about 30 yrs.Occ.Agriculture, Residing at Madanwadi, Tal.Indapur, Dist: Pune. 3. Pandurang Ganpat Deokate, Age about 60 yrs.Occ.Agriculture, Resident of Madanwadi, Bhigwan, Tal.Indapur, Dist: Pune. 4. Kundlik Dattatraya Bandgar, Age about 21 yrs.Occ.Agriculture, Resident of Madanwadi, Bhigwan, Tal.Indapur, Dist: Pune. 5. Padmakar Sahebrao Deokate, Age about 24 yrs. Occ.Agriculture, Resident of Madanwadi, Bhigwan, Tal.Indapur, Dist:Pune. 6. Vijay Pandurang Deokate, Age 19 yrs. Occ.Agriculture Resident of Madanwadi, Bhigwan, Tal.Indapur, Dist:Pune. 7. Tatya Bala Bandgar, Age about 45 yrs. Occ.Agriculture, Resident of Madanwadi, Bhigwan, 2 Tal.Indapur, Dist:Pune. 8. Dashrath Dattatraya Bandgar, Age about 42 yrs. Occ. Service, Resident of Madanwadi, Bhigwan, Tal.Indapur, Dist:Pune. 9. Bhausaheb Dattatraya Bandgar, Age about : major. Occ.Agriculture, Resident of Madanwadi, Bhigwan, Tal.Indapur, Dist:Pune. 10.Somnath Pandurang Deokate, Age about Major, . Occ.Agriculture, Resident of Madanwadi, Bhigwan, Tal.Indapur, Dist:Pune. 11. Vitthal Shankar Deokate, Age about major, Occ. Agriculture, Resident of Madaanwadi, Bhigwan, Tal.Indapur, Dist: Pune. .. Respondents Mr.H.J.Dedhia, APP for the Appellant-State. Mr.K.B.Sonwalkar for the Respondents. CORAM: D.B.BHOSALE & R.G.KETKAR, JJ. DATE: 24th August, 2010. JUDGMENT.: (Per R.G.Ketkar, J.) 1. This appeal is preferred by the State of Maharashtra against the judgment and order dated 31st May, 1990 passed by learned Additional Sessions Judge, Baramukh, in Sessions Case No.11/B-1989. By that judgment, learned Sessions 3 Judge acquitted Respondents herein-original accused u/s.232 of the Code of Criminal Procedure, 1973 for the offence punishable u/s.147, 148, 149, 307, 325 read with section 34 Indian Penal Code, 1860 (for short IPC). 2. Respondents hereinafter referred to as accused were charged for the offences punishable u/s.147, 148, 149, 307, 325 read with section 34 IPC. The case of the prosecution is that PW1 Ramesh, PW2 Kashinath and PW3 Sunil, Sanjay, his mother and wives of these brothers reside jointly at village Madanvadi, Bhigwan. They also run hotel in the same village. Accused Nos.1 to 9 reside in their vasti in agricultural land bearing Gat No.474 which is at the distance of one kilometer to the western side of village Madanwadi. 3. PW1 Ramesh and his brothers, and the father PW2 Kashinath own and possess agricultural land bearing Gat No.521 which is adjacent to Gat No.474. In the year 1981 PW1 Ramesh, his father Kashinath and the brothers purchased land bearing Gat 4 No.321/A in the shivar of village Madanwadi from one Bhagwan Chandrakant Kakare. It is the case of the prosecution that Accused No.5, 6 and 11 started obstructing possession and cultivation of their joint family property in land bearing Gat No.301. PW1 Ramesh and his father PW2 Kashinath instituted Regular Civil Suit No.224 of 1987 in the court of learned Civil Judge, Junior Division, Indapur for perpetual injunction against Accused Nos.3, 5, 6, 10 and 11. Accused No.s 1, 2, 4 and 9 instituted Regular Civil Suit No.190 of 1987 against them for perpetual injunction in respect of Gat No.521. On 8th October, 1987 the Regular Civil Suit No.190 of 1987 was listed for hearing. PW1 Ramesh took out an application asserting therein that the Accused are intending to remove onion crop from the said land. Their Advocate informed PW1 Ramesh that the Court will appoint Receiver for taking possession of the said crop as also for selling the said crop. He returned to his residence at 06.00 p.m on 8th October, 1987. 4. It is the case of the prosecution that the family of PW2 5 Kashinath was informed that Bandgars and Devkates (Accused herein) were intending to remove onion crop. They reached Gat No.521 and were standing on the bund of Gat No.521. Accused Nos.1, 2, 3, 4, 5, 6 and 8 were removing onion crop from Gat No.521 and rest of the accused were helping them in removing the said crop. PW1 Ramesh and PW3 Sunil tried to convince the accused not to remove the onion crop. Exchange of hot words took place in Gat No.521. Accused were armed with weapons. PW1 Ramesh and PW3 Sunil were assaulted by accused with axes, iron bars and wooden sticks. PW1 Ramesh and PW3 Sunil shouted for help. Mother and sister of Accused Nos.1, 2,4, 8 and 9 came on the spot and prevented Accused from assaulting PW1 Ramesh and PW3 Sunil. PW1 Ramesh and PW3 Sunil became unconscious on the spot. PW1 Ramesh sustained three injuries. PW2 Kashinath, PW3 Sunil and his cousin PW4 Vinayak also sustained injuries. PW1 Ramesh received first aid at Primary Health Centre Bhigwan. Thereafter he was shifted to Silver Jubilee Hospital Baramati where he was indoor patient for about 22 days. 6 Subsequently, he was shifted to Krishna Hospital, Baramati where he was admitted as indoor patient for 10 days. He was thereafter shifted to Danvantari Hosiptal Baramati. PW2 Kashinath sustained fracture on his left leg and was admitted as indoor patient at Civil Hospital Baramati for about 22 days. PW3 Sunil sustained head injury. All the injured persons were brought to Primary Health Centre Bhigwan in a Jeep by PW4 Vinayak. Police arrived in the Primary Health Centre, Bhigvan and after enquiry from the injured persons, complaint of PW2 Kashinath was reduced into writing at Exh.43. PW11 Anil Patil, the then police Sub-Inspector attached to Indapur Police Station carried out investigation. C.R.No.194 of 1987 was registered u/s.147, 148, 149, 324, 504, 526 an 307 IPC. On 9th October, 1987, the clothes of the injured persons were attached. Panchanama of scene of offence was drawn. The various weapons such as axes, iron bars, wooden sticks were attached and seized at the instance of Accused No.1 from his house in the recovery made u/s.27 of the Indian Evidence Act, 1872. PW11 Anil Patil recorded statements of various persons 7 and witnesses. On completion of investigation, chargesheet was filed against all accused in the Court of learned Judicial Magistrate, First Class, Indapur on 4th December, 1987. Since the offence punishable u/s.307 IPC was exclusively triable by the Court of Sessions, learned Magistrate committed the matter and the accused to the Court of Sessions, Pune. Learned Additional Sessions Judge framed charge Exh.5 on 25th November, 1988 for the offence punishable u/s.147, 148, 149, 307, 325 read with section 34 IPC. The particulars of the charge were read over and explained to the accused. They pleaded not guilty and claimed to be tried. The charge at Exh. 5 was amended because of typographical mistake in relation to the date of incident, which was written as 9th October, 1987 instead of 8th October, 1987. Date of incident was corrected as 8th October, 1987 in the amended charge (Exh.26) during the course of trial. 5. The defence of the accused Nos.1, 2 and 4 was that they are the owners and in possession of Gat No.521. Since PW1 8 Ramesh, PW2 Kashinath and PW3 Sunil were obstructing their possession, they instituted R.C.Suit No.190 of 1987 and obtained injunction restraining these persons from entering Gat No.521. It is their defence that accused Nos. 2 and 4 were on the spot of incident on 8th October, 1987 and were preventing PW2 Kashinath and his sons from entering Gat No. 521. Exchange of hot words took place between PW2 Kashinath & his sons PW1 Ramesh & PW3 Sunil on one hand and Accused Nos.2 & 4 on the other. PW2 Kashinath and his sons pushed Accused Nos.2 & 4 and dragged them towards Babhul tree and assaulted them. Scuffle took place when PW1 Ramesh, PW2 Kashinath and PW3 Sunil dashed on Babhul tree and fell down on the stone and in the scuffle that they sustained injuries. The defence of Accused No.3 and 5 to 11 was that they were not present at the time of the alleged incident and have been falsely implicated on account of civil dispute. 6. In order to bring home the guilt of Accused, the prosecution 9 examined 11 witnesses, details whereof are as under:- (i) PW1-Ramesh at Exh.41, who is an injured witness, as also eye witness to the incident. (ii) PW2-Kashinath at Exh.42. He made complaint at Exh. 43. He in an injured witness, as also the eye witness to the incident. (iii) PW3-Sunil at Exh.45. He is an injured witness as also the eye witness to the incident. (iv) PW4-Vinayak at Exh.47, who is nephew of PW2- Kashinath. He claims to be eye witness to the incident. (v) PW5-Ambadas Mahadeo Dhavale at Exh.48. He claims that PW4 -Vinayak narrated the incident to him. (vi) PW6-Khaja Ibrahim Momin, who is panch to the 10 Panchanama of scene of offence dated 9th October, 1987 Exh.50, as also to the panchanama of seizure of clothes of Accused Baban, Accused Kundlik dated 9th October, 1987 Exh.51, as also to the panchanama of attachment of clothes and weapons from the accused dated 13th October, 1987 at Exh.52B. (vii)PW7-Dr.Kisan Balu Shende, Medical Officer attached to the Primary Health Centre, Bhigwan at Exh.53. He examined PW1-Ramesh, PW2-Kashinath, PW3-Sunil and issued medical certificates at Exh.54 to 56 on 8th October, 1987. He has produced medical certificates dated 8th October, 1987 at Exh.57 in respect of PW1. (viii) PW8-Dr.Sanjeev Maruti Hegade, Medical Officer attached to Indapur Rural Hospital. He examined Accused No.1 Dilip and issued medical certificate at Exh.60. He examined Accused No.2 and issued medical certificate at Exh.61. He examined Accused No.4 Kundlik and issued 11 medical certificate at Exh.62. Medical certificates at Exh. 60 and 61 were issued on 2nd August, 1989 and medical certificate at Exh.62 was issued on 12th August, 1989. (ix) PW9- Dr.Suresh Sonawane, Medical Officer attached to Silver Jubilee Hospital. He examined PW1-Ramesh and issued medical certificate at Exh.64. He examined PW2- Kashinath and issued medical certificate at Exh.66. He examined PW3-Sunil and issued medical certificate at Exh. 69 and finally he examined PW4 and issued medical certificate at Exh.70. (x) PW10-Madhav Gangadhar Rajguru, Police Head Constable attached to Indapur Police Station. He reduced into writing complaint Exh.43 made by PW2-Kashinath. He also prepared occurrence report at Exh.72. (xi) PW11-Anil Kalidasrao Patil, PSI attached to Indapur Police Station and the Investigating Officer. He carried out 12 panchanama at Exh.40 in respect of clothes of PW1- Ramesh, PW2-Kashinath and PW3-Sunil. He also recorded statements of PW1-Ramesh and PW3-Sunil. He prepared panchanama of scene of offence at Exh.50 and attached articles thereunder. Under panchanama at Exh.51 he seized blood stained clothes of Accused Nos.1, 2 and 4, as also the articles. He attached weapons under panchanama at Exh. 52B and forwarded articles to the Chemical Analyzer, Pune. 7. After considering the material on record, learned Sessions Judge acquitted the accused by judgment and order dated 31st May, 1990. It is against this judgment that the State of Maharashtra has preferred the above appeal. 8. Before we consider the merits of the case, certain facts which are not in dispute may be noted. PW2 Kashinath and his two sons PW1 Ramesh and PW3 Sunil had instituted R.C.Suit No. 224 of 1987 in the Court of Civil Judge, Junior Division, Indapur against the accused Nos.3, 5, 6, 10 and 11 for 13 perpetual injunction restraining them from obstructing possession of PW2 Kashinath and his sons. The dispute in that case related to the agricultural land bearing Gat No.301. Similarly, Accused Nos.1, 2, 4 and 9 instituted R.C.Suit No. 190 of 1987 for perpetual injunction restraining PW2 Kashinath and his sons from interfering with their possession and enjoyment of the agricultural land bearing Gat No.521. The said suit was instituted in the Court of Civil Judge, Junior Division, Indapur. 9. In R.C.S.No.190 of 1987, Accused Nos.1 and 2 obtained order of temporary injunction against PW2 Kashinath and his two sons on 20th August, 1987. PW2 Kashinath and his two sons were restrained from interfering with possession of Bandgars’ in respect of Gat No.521 on the strength of prima-facie finding that PW2 and his sons were not in possession and cultivation of Gat No.521. The 7/12 extract (Exh.81) filed on record, also showed that the Accused Nos.1, 2, 4 and 9 were in possession of Gat No.521 on the date of alleged incident on 14 8th October, 1987. 10.It is the case of the prosecution that Bandgars' and Devkates' (Accused herein) were intending to remove onion crop. However, as per 7/12 extract (Exh.81) crops such as Bajara, Jawar were taken in the year 1986-87 & 1987-88 and onion crop was not standing or cultivated in Gat No.521. Thus the very cause of the alleged incident is doubtful. It is the case of the prosecution that the incident took place on the bund of Gat No.521. PW2 Kashinath, PW1 Ramesh and PW3 Sunil reached Gat No.521 from canal side and parked their motorcycle near the canal. When they saw accused Nos.1 to 8 and 11 were removing onion crop from Gat No.521, PW1 Ramesh told accused not to remove the crop. He further stated that they had applied for appointment of receiver for removal of the crop. It is at this stage Accused No.2 warned them to leave the field, failing which, he will teach them lesson. PW1 Ramesh and PW2 Kashinath deposed that Accused Nos. 2, 3 and 8 were armed with axes. Accused Nos.1, 4 and 7 were 15 armed with iron bars. Accused No.9 was armed with wooden handle of spade, and rest of the accused were armed with wooden sticks. PW1 Ramesh deposed that Accused No.8 gave three axe blows on his head. Accused No.2 Baban gave one axe blow on his right knee. Accused No.3 gave blow of axe on the head of PW2 Kashinath. Accused No.4 gave iron bar blow on the head of PW3. Accused who were armed with wooden sticks and iron bars started assaulting them. On hearing the shouts of PW1 Ramesh, PW2 Kashinath and PW3 Sunil, the mother and sister of Accused Bandgars came on the spot and asked accused not to assault these prosecution witnesses, whereupon, the accused left the spot. 11.As noted earlier, the defence of the accused is that only the Accused Nos.2 & 4 were on the spot on the date of alleged incident and rest of the accused were not at all present. The defence of Accused Nos.2 & 4 was that it is the prosecution witnesses PW1 to PW3 who rushed towards them and gave threats. Accused Nos.2 & 4 asked them to leave the land under 16 their cultivation and PW1 to PW3 refused to go out of the field and they gave threats to Accused Nos.2 & 4. After altercation between the prosecution witnesses and the Accused Nos.2 & 4 they were dragged by PW2 Kashinath and his sons towards Babhul tree. Scuffle took place between PW1 to PW3 on one hand and Accused Nos.2 & 4 on the other. In the process PW1 Ramesh sustained injuries due to dash on Babhul tree and he fell down. PW2 Kashinath and PW3 Sunil also fell down during the scuffle and sustained injuries. 12.PW7 Dr.Kisan Shende, Medical Officer attached to the Primary Health Centre, Bhigwan deposed that he examined PW1 Ramesh, PW2 Kashinath and PW3 Sunil. After noting the injuries on these persons, he issued medical certificates at Exhibits 54, 55 and 56 in respect of PW1, PW2 & PW3 respectively. PW7 Dr.Kisan also issued 2nd certificate Exh.57 in respect of PW1 Ramesh. PW7 Dr.Kisan also admitted that the injuries mentioned in the certificates at Exhibits 54 and 57 in respect of PW1 Ramesh were possible due to fall. In so far 17 as injuries mentioned in certificate at Exh.55 in respect of PW2 Kashinath is concerned, he opined deposed that they were simple injuries. In so far as injuries in certificate at Exh. 56 in respect of PW3 Sunil is concerned, he opined that except injury No.1, other injuries were simple. Injury No.1 could be caused due to fall and dash against hard and blunt object. Injuries mentioned in the certificate at Exh.55 were possible due to repeated fall or dash against hard and blunt substance and the same opinion applied to the injuries mentioned in certificate at Exh.56. Thus the evidence of PW7 Dr.Kisan supported the defence taken by Accused that PW1 to PW3 might have sustained injuries in the scuffle due to fall and due to the impact of dash on Babhul tree. 13.PW 9 Dr.Suresh Sonawane examined PW1 Ramesh and issued certificate at Exh.64. He examined PW2 Kashinath and issued certificate at Exh.66. He also examined PW3 Sunil and issued certificate at Exh.69. Now comparison of the injuries mentioned by PW7 Dr.Kisan in the certificates at Exhibits 54 18 to 56 with the injuries mentioned by PW9 Dr.Suresh Sonawane in the certificates at Exh.64, 66 and 69 clearly shows that there is variance in the medical evidence led by these two witnesses. The possibility that PW1 to PW3 of sustaining injuries due to repeated fall on the stone wall of the canal and impact and dash on Babhul tree during the scuffle, cannot be ruled out. 14.PW4 Vinayak deposed that PW1 to PW3 informed him that they were going to their field for a round and were returning back. The evidence of PW4 suffers from the material omissions and does not inspire confidence. In fact, considering his evidence, it is highly doubtful whether he had reached the spot subsequently. Moreover PW4 being relative of PW2 Kashinath, is also a interested witness. In the evidence of PW2 Kashinath, it has come that he did not state in his complainit Exh.43 that the Accused No.9 Bhausaheb was armed with the wooden handle of the spade and rest of the accused were armed with wooden sticks. He also did not set 19 out in the complaint specifically regarding the thumb injury which he sustained. Even PW3 Sunil did not state in the statement recorded by the police that Bandgars’ and Devkates’ (Accused) were removing onion crop. He also did not state that the Accused No.1 Dilip and Accused No.6 Vijay were present at the time of alleged incident. Thus the evidence of PW2 Kashinath and PW3 Sunil suffers from material omissions and thus the defence raised by the Accused becomes probable. 15.Learned Sessions Judge, considering the material on record, held that the prosecution failed to establish the genesis of the incident. The presence of PW4 Vinayak on the spot was also doubtful. The medical evidence was not cogent and convincing. The defence taken by the Accused also appears to be probable. After re-appreciating evidence on record, we do not find that the view taken by learned Sessions Judge is perverse. The view taken by the learned Sessions Judge is a reasonable and possible view. We do not find any material on 20 record to take a different view of the matter. In the result Appeal fails and the same is dismissed. ( R.G.KETKAR, J.) (D.B.BHOSALE, J.)