[-1-] IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPLN.NO.1531 OF 2007 IN CRI.APPEAL NO. OF 2007 The State of Maharashtra ..Applicant Vs. Sanjay Vasantrao Nikam and Ors. ..Respondents ... Mr.V.B.Konde-Deshmukh APP for Applicant-State ... CORAM: SMT.V.K.TAHILRAMANI,J. CORAM: SMT.V.K.TAHILRAMANI,J. CORAM: SMT.V.K.TAHILRAMANI,J. DATE : JUNE 02, 2008 DATE : JUNE 02, 2008 DATE : JUNE 02, 2008 P.C. P.C. P.C. 1. The Applicant-State has preferred this application for leave to file an appeal against the judgment and order dated 12.1.2007 passed by the learned Ad-hoc Additional Sessions Judge Kolhapur in Sessions Case No.134 of 2006. By the said judgment and order, the learned Sessions Judge acquitted the Respondents-accused of the offences mainly under Sections 3(1)(x) of the Scheduled Caste and Scheduled Tribes (Prevention of Atrocities) Act 1989 and under Sections 147, 148 and 149 read with Sections 427 and 452 of the IPC. 2. The prosecution case is that Rahul the son of [-2-] the PW 6 Rajashri had outraged the modesty of Dipali, hence, the complaint came to be filed against Rahul on 26.2.2006. With respect to that incident, the villagers were on the look out for Rahul the son of PW 6 Rajashri and brother of PW 3 Sadhana. On 26.2.2006 at about 7 p.m. villagers came to the house of Rajashri and Sadhana. They were saying that Rahul should be handed over to them as he has misbehaved with the girl. Rajashri assured that Rahul would be handed over to them after he reached home. It is the prosecution case that at that time, some of the accused had abused Rajashri by referring to her caste. It is the case of the complainant that on the next date i.e. on 27.2.2006 in the morning when Rajashri opened the shop, all the accused came there. Accused Sanjay Nikam dragged Rajashri out of the shop and abused her "Chambhardila Masti Ali Aahe. Dukan Ughadun Basali Aahe". The accused then closed the shop of the complainant. At that time, PW 3 Sadhana was cooking food in the house. PW 5 Ananda who is the relative of the complainant, came to her house. When they were talking, they heard commotion outside. They saw a mob of 100 to 200 persons gathered infront of their shop. All the accused [-3-] were present in the mob. The accused persons started pelting stones towards shop and also abused "Chambhardila Masti Alia Aahe. Dukan Ughadun Basali Aahe". The accused then broke open the shop and caused damage to the articles therein. 3. I have heard the learned APP for the Applicant-State. I have perused the impugned judgment and order as well as the evidence which has been produced by the learned APP. 4. As far as the incident relating to 26.2.2006 is concerned, PW 3 Rajashri has stated that she was abused by the accused persons who uttered the words "Chambhardila Jast Masti Ali Aahe. Tyana Gavat Thevayache Nahi". However, it is pertinent to note that PW 3 Sadhana who is daughter of Rajashri, is completely silent about the accused uttering such words. The complaint Exh.48 is also silent about the accused uttering such words or giving abuses to Rajashri or witnesses on 26.2.2006. 5. As far as the incident on 27.2.2006 is concerned, PW 3 Sadhana in her evidence has stated that when Rajashri opened the shop. Sanjay Nikam [-4-] dragged Sou.Rajashri out of shop and abused her saying her "Chambhardila Jast Masti Alia Ahe". Thus, PW 3 Sadhana has stated that only Sanjay Nikam abused Rajashri by referring to her caste. PW 6 Rajashri on the other hand in her evidence stated that at about 7.00 a.m. while she was in the shop, 5-7 persons rushed to the shop shouting "Chambhardine Dukan Ughadale Aahe". Thus, PW 3 Sadhana stated only about Sanjay Nikam abusing Rajashri by referring to her caste while PW 6 Rajashri implicated other persons also in giving abuses to her by referring to her caste. This inconsistency affects the reliability of the prosecution witnesses and it goes to the root of the prosecution case. 6. As far as PW 5 Ananda is concerned, he has stated that when he went to the place of the incident, people had already damaged the shop of the complainant and the door of the shop was already broken. Ananda has clearly stated that it did not happen that before the incident occurred, he met Sadhana. Ananda has further clarified that after the incident in which the shop was damaged after the mob left the place, he met Sadhana. On [-5-] perusal of the evidence of Ananda it is seen that Ananda has reached the spot after the incident had taken place. On the other hand, the case of Sadhana is that Ananda had come to her house prior to the incident. On perusal of evidence of PW 5 Ananda, grave doubt arises in the mind in respect of his evidence and it also makes the evidence of PW 3 Sadhana doubtful. 7. As far as the accused breaking open the shop of Rajashri and damaging the articles therein is concerned, Sadhana in her evidence has stated that on 26.2.2006 the police patil told them in the evening not to open their shop as people were enraged. Complainant Sadhana has clearly admitted that on 27.2.2006 accused Sanjay put his own lock on their shop only with a view to avoid damage to their shop from enraged mob. This admission of the complainant makes it very clear that accused Sanjay put a lock on the shop of the complainant only with a view to protect the shop from the hands of the enraged mob and not to prevent Rajashri or Sadhana from entering in the shop. 8. As per the evidence of the witnesses, there [-6-] were 100 to 200 persons in the mob. No specific role has been assigned to any of the accused. Moreover, there is major discrepancy in the evidence of the witnesses which goes to the root of the prosecution case. In such case, the defence taken by the accused seems probable that false complaint was filed against them as they made demand to Rajashri to hand over Rahul to them or to the police. The defence case that false complaint was filed against the accused persons only with a view to pressurise them for withdrawal of the case against Rahul seems very much probable. 9. Looking to the evidence on record and the serious discrepancies in the evidence of the witnesses, in my opinion, the view taken by the learned Sessions Judge is a reasonable and possible view. Hence, no interference is called for. Application for leave to file appeal, is rejected. [SMT.V.K.TAHILRAMANI, J.] [SMT.V.K.TAHILRAMANI, J.] [SMT.V.K.TAHILRAMANI, J.]