1 jdk IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION REVISION APPLN.NO. 380 OF 2000 Madhukar Sadanand Padwal ] Occupation : Business ] Resident of Alibag, ] Tal.Alibag, Dist.Raigad ]..Applicant (Ori.Complainant) Vs. 1. Anil Shriram Kadu ] Age 22 years (dead) ] 2. Suresh Tanayya Kotian ] Age 21 years ] 3. Uday Balkrishna Mhatre ] Age 21 years. ] 4. Mahesh Tanayya Kotian ] Age 19 years ] 5. Prakash Tanayya Kotian ] Age 18 years ] 6. Shantabai Tanayya Kotian ] Age 54 years ] 7. Haresh Tanayya Kotian ] Age 23 years ] 8. Pramod Madhukar Sutar, ] Age 23 years ] 9. Sunil Damodar Hire, ] Age 21 years ] All residents of Alibag, ] Tal.Alibag, Dist.Raigad ] 10.State of Maharashtra ] Through Alibag Police St. ]..Respondents 2 .... Mr. C.G.Gavnekar Adv. for Applicant Mr. Ganesh Gole Adv. for Respondent Nos.2 to 9 Respondent No.1 is dead Ms. S.D.Shinde APP for Respondent No.10-State .... CORAM : SMT.V.K.TAHILRAMANI, J. DATE : 15th APRIL, 2010 ORAL JUDGMENT: 1 Heard the learned counsel for the applicant, learned counsel for the respondent nos.2 to 9 and learned APP for the State. 2 This revision is directed against the judgment and order dated 27th August, 1999 passed by learned Judicial Magistrate F.C. Alibag in Regular Criminal Case No. 82 of 1992. By the said judgment and order, the learned Magistrate acquitted the respondent nos.2 to 9 of the offence under Sections 147, 148, 324, 323, 506 read with Section 149 of IPC. 3 The prosecution case is that on 25.5.92 at 4 p.m. the accused no.1 Anil Kadu (now deceased) approached the complainant and told that one Baburao Gobdole had asked for coconuts. Dispute arose between the complainant and accused no.1 on account of payment of 3 price of the coconuts. On account of this, accused no. 1 threatened the complainant. In the meanwhile, Mohan the brother of the complainant came to the spot. At that time, accused nos. 1, 2, 3 and 4 came there with weapons. It is the prosecution case that accused no.2 gave blow with sword on the head and hand of Mohan. Accused no.3 caught hold of Mohan from backside and accused nos.1 and 4 gave fist blows to Mohan. Accused no. 2 gave a blow of sword on the head of the complainant ’s wife. One Vilas Kashinath Mhatre came to separate the quarrel. He was also assaulted on his left hand by means of sword by accused no.2. 4 Mr. Gavanekar submitted that there was failure on the part of the prosecution to prove the prosecution case and due to this, the accused persons came to be acquitted. There is some substance in the submissions made by Mr. Gavanekar. However, I find that the evidence of prosecution witnesses itself does not inspire confidence, as it is full of omissions and contradictions which I shall advert to shortly. 5 The defence of the accused is that of total denial. Their defence is that there is dispute over the sharing of water in the locality and complainant used to play “Matka ” in the locality which was 4 objected by the accused persons and therefore, the complainant and other witnesses had deposed against them. 6 In the present case, the seizure of articles like sword, iron rods, clothes etc. have not been proved by the prosecution. But even assuming it is proved, the same have not been identified by the witnesses. Thus, it is seen that there is no satisfactory nexus between the alleged recoveries and that these very same weapons/articles were used by the accused persons in the incident. It is further noticed that the prosecution has failed to substantiate the alleged injuries as no medical evidence was adduced by the prosecution to prove the alleged injuries. 7 In respect of the evidence of witnesses, the learned Judge has observed that a number of material omissions have been brought on record. There are serious discrepancies and contradictions in the evidence of the witnesses. The evidence of complainant shows that at the time of incident, the accused persons were armed with sword, iron rods, stones, whereas in the complaint, it is alleged that the accused were armed with sword only. His evidence further shows that accused no. 2 had given a blow of sword on his hand and thereby he sustained bleeding injury on his finger but again the complaint is totally silent on 5 this aspect. His evidence further shows that he also received injury on his head due to blow of iron rod. However, his evidence neither discloses as to who had given blow of iron rod to him nor is it so alleged in his complaint. 8 It is further observed that according to the prosecution, one Vilas Mhatre was also assaulted by the accused who at the time of incident, was along with complainant and his family members. The evidence of complainant shows that when Vilas Mhatre tried to intervene he sustained injury on his fingers due to blow of sword. But surprisingly the evidence of the complainant does not disclose as to who assaulted Vilas Mhatre. Interestingly Vilas has also not been examined by the prosecution. 9 The complainant has given a altogether different version in his cross examination by stating that he was assaulted by weapons such as knife, stones and iron bar as according to him, accused no.5 had pelted stones on his head and because of it, he sustained 2 to 3 bleeding injuries on his head. Again strangely, the complaint or for that matter the supplementary statement of complainant does not disclose anything of such nature. He further stated in the cross-examination that 6 accused no. 3 was not armed with any weapon. Whereas the complaint and examination-in-chief show differently. According to the complainant, accused no.1 who is dead, had given fist blows on his eye, neck and forehead. However, there is no allegation against accused no.1 of such a nature in the complaint. Similarly, PW 5 stated in the cross- examination that accused no. 4 had not beaten Mohan Padval. Whereas the complaint in clear terms shows that accused no. 4 had beaten Mohan Padval. 10 The cross-examination of the complainant further shows that accused no.2 had given a blow of sword on head and on the hand of his wife and that accused no.7 had given a blow of iron rod on back of his wife. The complaint only shows that it was accused no. 2 who had given a blow of sword to the wife of the complainant. 11 PW 7 who is brother of PW 6 has stated that on the date of incident accused no. 1 had given fist blows on his right eye. Neither the version of PW 5 nor the complaint corroborates this piece of evidence. His evidence further shows that when PW 6 (complainant) intervened the accused no. 2 gave a blow of sword on his left palm. Whereas the version of PW 6 does not show that he was assaulted on palm as 7 deposed by PW 7. The evidence of PW 6 and PW 7 is quite contradictory. Thus, there is no satisfactory corroboration between the version of the eye witnesses on the material aspect of the incident. 12 PW 8 is wife of PW 6. Her evidence shows that when she tried to intervene, accused no.2 gave a blow of sword on her head and on her left hand. The accused no. 5 also hit on her back by means of stone and accused no. 4 gave blow of knife on her forehead. Accused no.7 assaulted by means of iron rod on her back and accused Shantabai told that she should be killed. Out of this version, only the version relating to blow of sword given by accused no.2 on her head gets corroboration from the version of other witnesses and from the complaint as well. But so far as blow on her left hand is concerned and that the accused nos.4, 5 and 7 assaulted by means of knife, stone and iron rod respectively are not even remotely alleged in the complaint and as also the threats given by accused Shantabai. This apart, her statement recorded by the police is totally silent on this aspect. 13 Apart from the above, the prosecution has failed to substantiate the alleged injuries by not adducing the medical evidence. One more aspect which needs to be noted is regarding muddemal 8 properties. Not only the seizure of articles like sword, iron rods, clothes, etc. have not been proved by the prosecution, but even assuming it is proved, the same are not identified by the witnesses and therefore, no satisfactory nexus is established that the very weapons which came to be seized were used in the incident by the accused. 14 Thus, viewed from any angle, no error can be found with the conclusion arrived at by the learned Judicial Magistrate that prosecution has miserably failed to prove the guilt of the accused. 15 In view of the above, revision application is dismissed. The judgment and order of acquittal dated 27th August, 1999 passed by the learned Judicial Magistrate F.C. Alibag, is confirmed. [ SMT. V.K.TAHILRAMANI, J.]