1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH, NAGPUR Criminal Appeal No. 261/2000 The State of Maharashtra, through P.SO. Bhandara, Distt. Bhandara ..Vs.. Mahadeo s/o Madho Selokar and two others Office Notes, Office Memoranda of Coram, Appearances, Courts orders or directions Court’s or Judge’s orders and Registrar’s orders. Mr. P.D. Kothari, A.P.P. for the Appellant Ms. Shilpa Tapdiya, Advocate h/f Mr. A. M. Quazi, Advocate for Respondents No. 1 to 3. CORAM : U.V. BAKRE, J. DATED : 19.9.2011. 1. Heard Mr. P.D. Kothari, learned A.P.P. for the Appellant and Ms. Shilpa Tapdiya, learned Advocate h/f Mr. A. M. Quazi, Advocate for Respondents No. 1 to 3, who shall hereinafter be referred to as accused Nos. 1 to 3. 2. This is a State Appeal against acquittal. 3. The accused persons were tried by the learned Judicial Magistrate First Class, Bhandara in Regular Criminal Case No. 156/95, for offence punishable under Section 324 read with Section 34 of the Indian Penal Code. 4. Case of the prosecution, in short, is as follows: 2 On 01/11/1994, at about 10:30 a.m. there was Gram Safai Abhiyan in village Jakh and cleaning operation of the village was taken up. The complainant Abhiman Ramji Korvekar along with Gram Panchayat members, Sarpanch, Secretary and other persons were performing the said operation. When they reached near the well of Mahagu Katankar, the accused no. 1 obstructed them saying that they have started digging drainage for flow of water towards his field. Therefore, the said persons including Abhiman left the said place and came near the common public well situated adjacent to the statue of Dr. Babasaheb Ambedkar. At that time all the three accused came there and assaulted Abhiman with axe and spade and when Devidas, the Sarpanch of the village and Vinod Jaganade went to rescue quarrel, the accused persons assaulted said Devidas and also Vinod. 5. The prosecution examined altogether 11 witnesses in support of its case. PW-1 is the said Abhiman Korvekar and his report is at Exh. 14. PW-2 Devidas Bhoyar is the Sarpanch. PW-3 Pramod Thakare, PW-4 Narendra Katankar, PW-6 Kishor Bagade and PW-8 Kothiram Bhure are eye-witnesses. PW-5 Indal Sarve acted as a panch witness for spot panchnama (Exh. 24) and seizure memo (Exh.25). PW-7 Dr. Madanmohan Yadao examined the injured persons and issued injury certificates. PW-10 Harichand Madavi and PW-11 Bhika Thakare are Investigating Officers. PW-9 Hiraman Meshram has turned hostile. 3 6. The case of the accused persons is that the accused no. 1 had obstructed digging of drain near the well which is situated near their field as it would have caused damage to their field and that no incident had taken place in Ambedkar ward. The accused persons have examined two witnesses namely Upasrao Mane as DW-1 and Rambhau Neware as DW-2. 7. Upon consideration of the entire evidence on record, the learned trial Magistrate found that the evidence on record is not reliable and trustworthy as the witnesses have not corroborated with each other and have given different versions. He further found that material witness namely Vinod Jaganade has not been examined and no explanation has been given for his non- examination. He also found that the version of the injured witnesses does not match with the medical evidence. The learned trial Magistrate, therefore, held that the prosecution has failed to establish the guilt of the accused persons. He, therefore, acquitted all of them. 8. Perused the record and proceedings. 9. On the date of incident, there was programme of Gram Safai Abhiyan in the village and the village was to be cleaned for which several persons had gathered for offering their service. PW-1 has admitted in his cross-examination that at the relevant time he 4 was in the opposite group of Mahadeo Selokar (accused no. 1). The accused nos. 2 and 3 are the sons of accused no. 1. PW-1 and others initially started the work at the well near the house of Mahagu Katankar. Admittedly, the agricultural land of accused persons is just adjacent to that well and this fact is admitted by PW-1. 10. PW-1 has deposed that a drain had to be prepared for flow of dirty water and that they were about to start the work, when the accused no. 1 (Mahadeo) obstructed them. According to PW-1, they therefore left the spot and went towards another well in Ambedkar ward. 11. But, PW-2 has stated that they all went near the common well situated near the house of Mahagu Katankar and started the work when accused no. 1 obstructed them and there was scuffle between the accused no. 1 and Abhiman Korvekar (PW-1) and then they left the place. In his cross-examination, PW-2 has stated that they were preparing a drain for flow of waste water. PW-2 has denied that they were preparing the drain towards the field of the accused Mahadeo. 12. PW-3, in his cross-examination, has admitted that they were preparing a drain which was proceeding towards agricultural land of accused persons and at that time the accused no. 1 5 obstructed them and asked them not to prepare the drain. PW-3 does not say that there was scuffle between the accused no. 1 and Abhiman (PW-1). PW-3 has stated that later on they had gone near the well situated in Ambedkar Ward. 13. PW-4 says that the incident of assault took place near a well situated near the house of Nathu Wasnik. 14. PW-6 has stated that there was some exchange of words with accused no.1 when they were sweeping the ground near the well of Mahagu Katankar and thereafter they went to the statue of Gautam Buddha. 15. PW-8, however says that they started sweeping village at the office of Gram Panchayat and came near the well which is near Ambedkar statue. 16. From the above evidence of PW-1, PW-2, PW-3, PW-6 and PW-8, it can be understood that there are changing versions given by them regarding the cleaning operation. One says that work had not started, another says that work of preparing drain had started, third one says work of sweeping only was going on. One denies that the said drain would have carried waste water towards the field of the accused persons but other admits that the drain would have carried waste water towards the field of accused. 6 17. The over all evidence on record reveals that PW-1 and others who were in opposite group were to commit mischief of digging the drain for flow of dirty water towards the field of the accused persons. Hence, the accused no. 1 cannot be blamed for having obstructed to the same work. The genesis of the alleged incident of assault therefore lies in the commencement of mischief by PW-1 and others. The above fact is duly proved by the evidence of DW-1 and DW-2. 18. Though, some prosecution witnesses say that the incident of assault had taken place in Ambedkar ward, where there is statue of Dr. Ambedkar, however, PW-4 says that it had occurred near the house of Nathu Wasnik and PW-6 says that it had occurred near the statue of Gautam Buddha. Hence, there is discrepancy about the spot of occurrence. 19. Since, the prosecution witnesses are not consistent, on material aspects, it can be said that they are not disclosing the whole truth. 20. According to PW-1 when they were cleaning the area near the well in Ambedkar ward, the accused no. 2 (Anna) came there and suddenly rushed on his person and asked him as to why he quarreled with his father. PW-2, in this regard, says that the 7 accused no. 2 abused PW-1. PW-2 does not say that the accused no. 2 rushed on PW-1's person. PW-3 and PW-6 do at all say that accused no. 2 had come there and had either rushed on or had abused PW-1. PW-4 and PW-8 are totally silent with regard to the above. 21. The above does not appear to be true because the accused no. 2 cannot be expected to know as to what had transpired at that spot prior to his reaching there. In his cross- examination, PW-1 has stated that the accused Anna reached there from Bhandara by his cycle and that while coming from Bhandara, the said well near Ambedkar statue comes first and the house of Anna comes later on. Hence, the accused no. 2 had no opportunity to meet his father, gain knowledge of previous incident and come near the statue of Ambedkar. There is therefore a made-up story stated by PW-1. Besides the above, the evidence of witnesses differ. 22. According to PW-1, later on, all the three accused came there in Ambedkar ward and accused no. 2 was having an axe, accused no. 1 was having spade and accused no. 3 was having stick and that accused no. 1 instigated other accused to assault them. No other witness examined by the prosecution says that there was instigation given by accused no. 1 to other accused to assault. PW-2 and PW-4 have corroborated PW-1 as far as the 8 weapon carried by each of the accused persons. But PW-3 says that all the accused were armed with spades and axes. PW-3 does not say that anyone was having stick. Contrary to the above, according to PW-8, the accused no. 2 had nothing in his hands. Therefore, there is no corroboration amongst the prosecution witnesses regarding the weapons which were with accused persons. 23. As per the evidence of PW-7 Dr. Yadao, PW-1, PW-2 and one Vinod Shrawan Jaganade had sustained injuries. But said Vinod Jaganade, inspite of being a material witness, has not been examined. 24. PW-1 has deposed about alleged assault on him alone. PW-1 does not say that Devidas (PW-2) or Vinod was also assaulted. PW-6 also does not say that PW-2 or Vinod was assaulted. PW-4 did not see the accused persons assaulting anyone as he ran away. PW-6 speaks about presence of accused no. 1 only and assault on PW-1. PW-6 however does not know as to what instrument was used. PW-6 has changed the spot of incident. 25. Two spades are allegedly attached from the spot, during the spot panchnama. But spades were also carried by PW-1 and others for the purpose of Gram Safai Abhiyan. Recovery of weapons at the instance of any of the accused persons is not proved. No blood was found on any of the weapons attached. 9 According to PW-7 - Dr. Yadao, the injury sustained by Devidas and Vinod was not possible due to axe. 26. On one hand there is version of the incident given by the prosecution witnesses. On the other hand, there is contrary version given by defence witnesses. The defence witnesses do not appear to have been shaken. 27. The evidence on record produced by the prosecution does not disclose the correct picture. There is possibility of free fight. PW-1, PW-2 and Vinod had sustained simple injuries. According to the accused persons, even they had sustained some injuries and they had themselves gone to the police station when they were arrested. 28. The evidence on record is not sufficient to prove the guilt of the accused persons beyond reasonable doubt, as has been rightly held by the trial Court. The impugned judgment cannot be termed as erroneous. In any case, the same is not perverse. No interference is called for. 29. In the result, the appeal has no merit and is dismissed. JUDGE Punde.