1 APEAL-J-320.94 IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE CRIMINAL APPEAL NO.320 OF 1994 The State of Maharashtra .... Appellant - Versus - 1. Shrikant Rambhau Gawand, Age 42 2. Kashinath Shivram Gawand, Age 30 3. Abhimanyu Shivram Gawand, Age 31 4. Anant Harishchandra Gawand, Age 26 5. Chagan Hanuman Gawand, Age 29 6. Kashinath Rama Gawand, age 52 7. Sandip Parshuram Patil, age 27 8. Balu Pandya Gawand, age 29 9. Raman Pandurang Gawand age 37 10. Baban Pandurang Gawand, age 37 11. Mangesh Vasant Gawand, age 24 2 APEAL-J-320.94 All r/o Pirkon, Taluka Uran, District: Raigad. .... Respondents Ms P.P. Shinde, Addl. Public Prosecutor, for the Appellant-State. None for the Respondents. CORAM: R.C. CHAVAN, J. DATED: APRIL 19, 2011 ORAL JUDGMENT: 1. This appeal by the State is directed against the Appellate Judgment of the learned Sessions Judge, Raigad-Alibag, who set aside the conviction of the respondents herein, recorded by the learned Assistant Sessions Judge, Raigad-Alibag for the offences punishable under Sections 325 and 452 r/w Section 149 of the IPC as also under Section 148 of the IPC and acquitted them of the said offences. 2. Facts which are material for deciding this appeal are as under: A D.Ed. College had been established at village Pirkon with the help of the villagers from ten adjoining villages. There were some 3 APEAL-J-320.94 disputes amongst the villagers of Pirkon itself about the management of the D.Ed. College spending contributions of citizens for meeting expenses of litigation pertaining to the management. The first informant already had been questioning the party of the accused as to why they were spending the contributions for the litigation, since accused No.1 was the representative of the villagers of Pirkon on the management of the College. This had allegedly incensed the party of the respondents. On 5-10-1986, when the first informant Raghunath was sitting at his house with his sons Krishna, Kashinath and Nana, the respondents, accompanied by several others totaling 49 in number, rushed at his courtyard and started hitting the first informant and his family members with sticks and stones. Taibai Gavand, Hasuram Gharat and Ramdas Gharat, who came to their rescue, were also beaten up. This assault, which began at 10:00 a.m., went on for three hours. The victims claim to have confined themselves inside their house to save themselves from the mob fury. At about 3:00 p.m. a police vehicle came and rescued the victims and sent them for medical treatment. After taking a report, an offence was registered and in the course of the 4 APEAL-J-320.94 investigation, panchnama of the spot was performed, statements of witnesses were recorded and on completion of the investigation, charge-sheet was sent to the Court of Judicial Magistrate, First Class, Uran, who committed the case to the Court of Sessions at Alibag. 3. The learned Sessions Judge of Raigad at Alibag charged the 49 accused persons arrayed before him of the offences punishable under Sections 147, 148 and 307 r/w Sections 149, Section 326 r/w Section 149, Section 452 r/w Section 149, Section 336 r/w Section 149, Section 337 r/w Section 149, Section 427 r/w Section 149, Section 506 r/w Section 149 and Section 395 r/w Section 397 of the IPC, depending on the complicity of the participants in each of the criminal acts. They pleaded not guilty. The learned Sessions Judge made over the case to a learned Assistant Sessions Judge. The prosecution examined in all nine witnesses in its attempt to bring home the guilt of the accused persons. After considering the evidence of those nine witnesses in the light of defence of false implication raised by the accused persons, the learned Assistant Sessions Judge found that the prosecution had failed to prove 5 APEAL-J-320.94 the charges as against accused Nos.4, 6, 7, 10 to 13, 16, 17, 21, 22, 23, 25, 26, 28 to 31 and 34 to 49 of all the offences charged and proceeded to acquit them. He convicted accused Nos.1, 2, 3, 8, 14, 15, 18, 19, 20, 24 and 33 of the offences punishable under Sections 148 and 325 r/w Section 149 and Section 452 r/w Section 149 of the IPC and sentenced them to various terms of imprisonment and fine. Aggrieved thereby, the convicts preferred an appeal before the Court of Sessions at Alibag. The learned Sessions Judge, after re-assessing the entire evidence, came to hold that the learned Assistant Sessions Judge erred in convicting the appellants before him and, therefore, proceeded to allow the appeal and set aside the conviction of those persons. He proceeded to acquit them of the of the offences for which they were convicted. Aggrieved thereby, the State has preferred this appeal. 4. I have heard the learned APP for the appellant-State and have gone through the record with her help. None appears for the respondents, though duly served. The evidence tendered is in the form of testimony of PW-1 Raghunath Gavand, the first informant, who was himself injured at the time of the incident. 6 APEAL-J-320.94 PW-2 Hasuram Gharat, PW-3 Ramdas Gharat and PW-4 Taibai Gavand are the eye-witnesses to the incident and were also injured in the assault. PW-5 Krishna is the son of PW-1 Raghunath. His other two sons, PW-6 Nana and PW-7 Kashinath were also examined. The three sons of PW-1 Raghunath were also injured and had witnessed the incident. PW-8 PSI Vithal Barge carried out the investigation and PW-9 Dr. Ramrao Kendre had examined the injured persons. The learned Sessions Judge had held that the evidence of the prosecution witnesses was not reliable because of the discrepancy in their evidence about the time of the incident as well as the time of their medical examinations. He had also observed that all the injured eye-witnesses stated in orchestrated harmony that the incident began at 10:00 a.m. on 5-10-1986 and was continued for about three hours and that the witnesses were confined for the entire period of three hours. They claim to have been rescued only by the police party which had come to the scene. The police seem to have reached the place only at 3:00 p.m. and the witnesses state that the police party reached around that time except PW-6 Nana, who states that the police party came at 1:00 p.m.. If the victims had not been rescued till the police party 7 APEAL-J-320.94 reached, the time when the police party reached would be material. PW-8 PSI Barge states that at about 4:00 p.m. on the incidental day, Police Head Constable More and some staff, in a wireless jeep, came to him and informed him about the incident going on at village Pirkon and therefore he claims to have gone in that jeep and reached village Pirkon at about 4:30 p.m.. While at one place PW-8 PSI Barge states that before he reached, the mob had already dispersed, in the same paragraph of his deposition, he stated that after seeing the police party, the mob dispersed and ran away. Thereafter, he claims to have sent the injured persons to the hospital. Thus, this could not have happened before 4:30 p.m.. 5. Curiously, PW-9 Dr. Kendre states that he examined Ramdas, Hasuram, Raghunath, Taibai and Kashinath Gavand at 3:00 p.m. itself. He claims that though he had not received any requisition from the police, it was his practice to examine a person who came to his hospital, which is indeed a salutary practice. But the witnesses do not state that they had gone on their own to the hospital of Dr. Kendre. They state that they were taken there by the police. Therefore, examination of these 8 APEAL-J-320.94 witnesses at 3:00 p.m. by Dr. Kendre would put a big question mark on the time when the police party reached and when the police were actually informed of the incident. 6. This is not all. PW-5 Krishna and PW-6 Nana were examined by the Medical Officer at 8:00 p.m.. Now why these two persons were left behind when all the other injured persons were taken to the hospital, has not been clarified by anyone. Because of these glaring discrepancies, the learned Sessions Judge has cast a doubt about the FIR at Exhibit-56 itself being concocted since it was recorded after 4:00 p.m.. It cannot be said that the doubts expressed by the learned Sessions Judge on the reliability of the prosecution witnesses are unfounded or that he had perversely rejected the testimonies of these witnesses. Since the view taken by the learned Sessions Judge is probable, this appeal must fail. 7. The appeal is, therefore, dismissed. Sd/- (R.C. CHAVAN, J.)