- 1 - IN IN IN THE HIGH COURT OF JUDICATURE AT BOMBAY THE HIGH COURT OF JUDICATURE AT BOMBAY THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL CRIMINAL CRIMINAL APPELLATE JURISDICTION APPELLATE JURISDICTION APPELLATE JURISDICTION CRIMINAL CRIMINAL CRIMINAL APPLICATION NO.86 OF 2009 APPLICATION NO.86 OF 2009 APPLICATION NO.86 OF 2009 The State of Maharashtra ...Applicant vs. Shankar Santu Patil @ Tatya Patil ...Respondent Mr.Y.S.Shinde A.P.P. for State None for the Respondent CORAM: CORAM: CORAM: A.S.OKA,J. A.S.OKA,J. A.S.OKA,J. DATE DATE DATE : MARCH 6,2009 : MARCH 6,2009 : MARCH 6,2009 P.C.: P.C.: P.C.: 1. I have heard the submissions of the learned A.P.P for the applicant. This is an application under sub section 3 of section 378 of the Code of Criminal Procedure,1973. The respondent-accused has been acquitted of the offence punishable under section 3(1) (x) of the Scheduled Castes And Scheduled Tribes (Prevention of Atrocities) Act,1989 and section 7(1) (d) of the Protection of Civil Rights Act, 1955. 2. The learned A.P.P. has taken me through the impugned Judgment as well as deposition of material prosecution witnesses. Inviting my attention to the findings recorded by the learned Judge, he submitted that the learned Judge has given undue importance to the minor variance in the testimony of the prosecution witnesses as regards utterances made by the respondent-accused. He submitted that in fact the prosecution witnesses are very consistent about the utterances of the - 2 - accused. He pointed out that there was material on record to show that the complainant belongs to Scheduled Caste and the respondent-accused did not belong either to scheduled caste or scheduled tribe. He submitted that the conversation was recorded on the cell phone and was played in the court and the witnesses deposed that the voice recorded was that of the accused. He, therefore, submitted that the impugned order is perverse. 3. I have given careful consideration to the submissions. I have perused the original record and in particular notes of evidence. 4. According to the complainant (P.W.2) on 3rd October 2007, in the night , an election rally was addressed by the respondent-accused. The election rally was in connection with the election of village panchayat. The election was fought between the Janseva Aaghadi headed by the respondent-accused and Gramvikas Aaghadi. According to the P.W.2, the respondent-accused addressed election rally by using words related to casts and he stated that for demanding votes he will not go to the houses of Mahars/Mangs. 5. In the cross examination, the attention of the complainant was invited to the complaint filed by the P.W.2 in which he admitted that after canvassing for his party, he had attended - 3 - the meeting. He admitted that Gramvikas Aaghadi is led by local MLA Mr.K.P.Patil and that he was an employee of the school run by the said Mr.K.P.Patil. Thus, the witness admitted that he had canvassed for Janseva Aaghadi and thereafter, he attended the election rally in which the respondent-accused allegedly delivered the speech. 6. It is true that while deposing about the utterances allegedly made by the respondent-accused there are minor descripancies in the version of the eye witnesses. 7. However, it is brought on record that the complainant and the respondent-accused belong to rival groups who were contesting the village panchyat election. Moreover, it is stated that the alleged utterances were made by the respondent-accused in the election rally. 8. According to the prosecution case, the cell phone of P.W.6 Suresh G. Patil was seized. The said cell phone was shown to the two witnesses. It appears that what was seized is only cell phone and not the sim card. During the course of recording of evidence of P.W.6 Suresh Patil, with the permission of the court, a sim card was inserted in the cell phone and what was recorded therein was played in the court. According to the prosecution witness he had recorded the alleged utterances of the respondent and in the court he - 4 - identified the voice of the accused. Thus, the prosecution placed reliance on the recorded conversation of the respondent-accused on a cell phone. The procedure as provided in the rules framed by this court regarding evidence in the form of tape recorded conversation have not been observed. The transcription of the conversation/utterances was not filed on record and a copy thereof was not given to the respondent-accused. Moreover, the sim card was not seized. 9. In the context of the admitted political rivalry between the complainant and the respondent-accused, the learned Judge has rightly held that there is a discrepancy in the version of the prosecution witnesses. 10. After having heard and perused the notes of evidence, I find that the view taken by the learned trial Judge is a certainly possible view which could have been taken on the basis of evidence on record. No fault can be found with the view taken by the learned Judge. Application is rejected. JUDGE JUDGE JUDGE