1 Criminal Appeal No.486 of 2010 IN THE HIGH COURT OF JUDICATURE OF BOMBAY BENCH AT AURANGABAD CRIMINAL APPEAL NO.486 OF 2010 Umesh S/o.Vasant Budhawant, Age-25 years, Occu-Nil, R/o.Nimbe Nandoor, Tq.Pathardi, Dist. Ahmednagar APPELLANT VERSUS 1. Ramdas S/o.Vitthal Avhad, Age-43 years, Occu-Agriculture, 2. Santosh S/o.Chandrabhan Avhad, Age-21 years, Occu-Agriculture, 3. Gahininath S/o.Dhondiba Pote, Age-73 years, Occu-Agriculture, 4. Jalinder S/o.Gahininath Pote, Age-44 years, Occu- -- 5. Dilip S/o.Gahininath Pote, Age-42 years, Occu-Service, All Respondent No.1 to 5 are R/o.Baradari, Tq.Nagar, Dist. Ahmednagar. 6. The State of Maharashtra RESPONDENTS Mr.C.V.Bhadane, learned counsel for the appellant. Mr.S.K.Tambe, learned A.P.P. for respondent no.6 2 Criminal Appeal No.486 of 2010 (CORAM : P.V.HARDAS, AND A.V.POTDAR, J.J.) DATE : 28/06/2011 ORAL JUDGMENT : (Per A.V.Potdar, J.) 1. By the present appeal, the appellant/original complainant has questioned the correctness of the judgment and order of acquittal passed by the 6th Asstt. Sessions Judge, Ahmednagar in Sessions Case No.130/2009, vide judgment dated 12/10/2010, acquitting the respondents no.1 to 5 for the offence punishable u/s. 395 of the IPC. 2. We have heard learned counsel for appellant/original complainant. We have also perused the judgment impugned passed by the learned Lower Court in Sessions Case No.130/2009, dated 12/10/2010. On perusal of the judgment, it reveals that an offence came to be registered in Pathardi Police Station vide CR No.20/2008 on the complaint of Umesh Vasant Budhwant, R/o.Nimbe Nandoor, Dist. Ahmednagar, wherein it is alleged that on 29/01/2008, he had withdrawn an amount in the sum of Rs.40,000/- from the bank and was proceeding towards village Chichondi, Tal.Pathardi to the house of his sister by name Jayashri Suresh Avhad, as his sister was in need of an amount for purchase of tractor and trolley. At about 6.00 p.m., when he reached near S.T.Stand Chichondi, he received the information on his phone that his sister and her parents in law were in their agricultural land situated at the distance of about 3 kms. 3 Criminal Appeal No.486 of 2010 away from the ST stand of village Chichondi. Hence he turned his motor bike on the rough road i.e. the link road from Dharwadi Phata of Tisgaon-Chichondi road. At that time, respondents no.1 to 5 and one Chandrabhan Laxman Avhad came on 3 motor bikes. They stopped his motor bike. Respondent no.3 Gahininath Pote and Chandrabhan Avhad caught hold him and the remaining respondents assaulted him with fist and kick blows. At that time, respondent no.5 Dilip Pote snatched the gold chain from his neck weighing 15 gms. Respondent no.2 Santosh and respondent no.1 Ramdas have assaulted him with fist and kick blows. Respondent no.4 Jalinder and respondent no.2 Santosh forcibly took Rs.20,000/- from his pant-pocket. He gave alarm for help. On hearing his shouts, Vishnu Khandu Damle and one Namdeo Parashram Jarad (P.W.No.3) reached the spot. But during that time, respondents fled away from the spot with the cash of Rs.20,000/- and the gold chain. Thereafter, he went to Pathardi Police Station, where he lodged the complaint Exh.23. On the basis of said complaint, offence came to be registered against respondents no.1 to 5 and deceased Chandrabhan. On the next day, Investigation Officer visited the place of offence and drew spot panchnama. During the investigation, he recorded statements of certain witnesses. On completion of investigation, charge sheet was filed in the Court of J.M.F.C. Pathardi. Before the trial was committed to the Court of Sessions, Chandrabhan Avhad expired. Hence the trial was committed only against the present respondents no.1 to 5 to the 4 Criminal Appeal No.486 of 2010 Court of Sessions. On committal of the trial to the Court of Sessions, learned Lower Court framed charge at Exh.12 for an offence punishable u/s. 395 of the IPC, to which respondents no.1 to 5 pleaded not guilty and claimed to be tried. During the trial, to substantiate the charge lavelled against respondents no.1 to 5, prosecution have examined in all 6 witnesses. Defence of respondents no.1 to 5 is of total denial and they are falsely implicated in the case on the basis of rivalry between the relatives and 2 groups. 3. During the course of submissions across the bar, learned counsel for appellant placed on record certified copies of the deposition of P.W.No.1 Umesh Vasant Budhwant, P.W.No.3 Namdeo Parashram Jarad, and P.W.No.4 Subhash Madhavrao Avhad. Out of the remaining 3 witnesses, P.W.No.2 is the panch witness to the panchnama of scene of offence at Exh.25, which was drawn on the next day, but nothing incriminating was noticed at the place of offence. Prosecution witness no. 5 Vilas Makasare, Police Head Constable had registered an offence on the basis of complaint lodged by P.W.No.1 Umesh Budhwant and P.W.No.6 Pakhare is an Investigation Officer. So far as evidence of P.W.No.5 Vilas Makasare is concerned, he had stated that he had registered an offence on the basis of complaint lodged by P.W.No.1 Umesh Budhwant and he had not seen any injuries on the person of the complainant nor he had referred the complainant/appellant for the medical examination. Evidence of the Investigation Officer P.W.No.6 Pakhare is material on 5 Criminal Appeal No.486 of 2010 the point that during the investigation, cash of Rs.20,000/- and gold chain weighing 15 gms.was not recovered. We have perused the evidence of 3 material witnesses i.e. appellant/complainant Umesh Budhwant, Subhash Avhad and Namdeo Jarad. Out of these 3 witnesses, P.W.No.3 Namdeo Parshuram Jarad was examined by the prosecution as an eye witness. But from the evidence of complainant Umesh Budhwant (P.W.No.1), it revealed that till Namdeo Jarad (P.W.No.3) reached at the spot, the respondents fled away from the spot, and he himself informed about the incident to these witnesses. Hence, prosecution witness no.3 Namdeo Jarad can not be termed as an eye witness, and as P.W.No.3 Namdeo Jarad was declared hostile before the Trial Court, his evidence is not having any evidential value. There is no reference in the complaint lodged by the P.W.No.1 Umesh Budhwant that P.W.No.4 Subash Avhad reached at the spot. Oral evidence of the P.W.No.1 Umesh is also silent on this aspect. On perusal of the evidence of P.W.No.4 Subhash Madhavrao Avhad, it reveals that he learnt about the incident from the appellant/ complainant and he is not having any personal knowledge about the incident. Though the prosecution have examined 6 witnesses before the Trial Court to prove its case, the case of the prosecution rests on the sole testimony of appellant/complainant Umesh Budhwant (P.W.No.1) and it is necessary to consider the creditworthiness of the evidence given by the appellant/complainant. 4. While giving evidence about the incident, it is stated by the 6 Criminal Appeal No.486 of 2010 appellant/complainant P.W.No.1 Umesh that on 29/01/2008, he had withdrawn Rs.40,000/- from ADCC Bank, Dhorjalgaon. When he was proceeding to Chichondi to the house of his sister at about 6.00 p.m., and reached near the S.T. stand, he received phone message that his sister Jayashri and her parents in law were present in their agricultural land, hence he turned his motor bike on the rough road by the link road Dharwadi phata of Tisgaon-Chichondi road. Before proceeding to the house of his sister, out of Rs.40,000/.- he had kept Rs.20,000/- at his home and kept Rs.20,000/- with him. This evidence given by him is proved to be an omission as in paragraph no.4 of his cross examination, he has admitted in clear terms that he had not stated all these facts in his statement before police. While giving evidence about the actual incident, he has stated that when he took his motor-bike on the rough road, at that time, respondents no.1 to 5 alongwith deceased Chandrabhan came on motor-bike. Respondents Gahininath and Chandrabhan caught hold him, respondent Dilip snatched the gold chain from his neck, respondent Santosh and Ramdas assaulted him with fist and kick blows while respondent Jalinder and Santosh removed Rs.20,000/- from his pocket. He has further stated that because of falling of his motor- bike, some petrol drilled out from the tank and hence he pushed the motor bike for about 5-6 kms and after feeling petrol, he went to police station at about 10.30 p.m. This evidence is also a proved omission. It is to be noted that the land of his sister Jayashri is at the distance of 1 km from the place where the alleged incident took 7 Criminal Appeal No.486 of 2010 place. Instead of informing the incident to his sister, though his sister and her in laws were present in the agricultural land situated at the distance of 1 km from the spot of incident, he had preferred to push the motor-bike for 5-6 kms and after feeling petrol, went to police station and lodged the report. This evidence appears to be un- natural and the conduct of the complainant is not the conduct of the prudent man and hence his evidence was discarded by the learned Lower Court. Learned Lower Court has further observed that the the appellant was proceeding on that road because of receipt of phone message, but in the cross examination, the appellant/ complainant has admitted in clear terms that at the material time, he was not carrying mobile. Now the question arose, if the appellant was not having mobile at the relevant time, then on which phone he had received the message that his sister and her parents-in-law are present in their agricultural land. It appears that entire complaint is a concocted story as rightly observed by the learned Lower Court. Learned Lower Court has further observed that it transpired from the cross examination of appellant that on 29/01/2008, a complaint was lodged by Gayabai Gahininath Pote, the mother of respondent Dilip that the appellant alongwith Balu Avhad brother in law of the appellant/complainant, Dinkar Avhad, Vishnu Avhad and Prakash Avhad tried to abduct respondent Deelip from the Civil Hospital, Ahmednagar, in which crime, he was released on bail. He has admitted that number of cases are pending against him, filed by the respondents and their family members. Considering all these 8 Criminal Appeal No.486 of 2010 aspects, the Lower Court find that the evidence given by the appellant is not trustworthy and conviction can not be based on his sole testimony and acquitted respondents no.1 to 5. On perusal of the reasoning recorded by the learned Lower Court, we are of the considered opinion that the view taken by the learned Lower Court appeared to be a probable view. We also do not find any perversity in the conclusion drawn by the learned Lower Court and do not require any interference at the hands of this Court. If it is so, appeal sans any merit, hence dismissed. (A.V.POTDAR, J.) (P.V.HARDAS, J.) khs/JUNE 2011/cri.appeal 486-10