1 criapl-304.00 IN THE HIGH COURT OF JUDICATURE AT BOMBAY, BENCH AT AURANGABAD CRIMINAL APPEAL NO. 304 OF 2000 The State of Maharashtra, through P. S. O., Purna. Appellant/orig. complainant. versus 01. Bhagwat Naroji Chavan, age 25 years, resident of Sathephal, 02. Dnyaneshwar Naroji Chavan, age 40 years, r/of as above. 03. Sakharam s/o Mahadu Jogdand, age 55 years, r/of Sathephal, Respondents/ Tq. Purna, Dist. Parbhani. ori. accused. ---------------------------------------------------------------- Shri S.G. Nandedkar, A.P.P. for the Appellant-State. Shri A.S. Doke, Adv. holding for Shri V. D. Salunke Advocate for the Respondents-original accused. ---------------------------------------------------------------- Coram : Shrihari P. Davare, J. Judgment reserved on : 21.3.2011 Judgment pronounced on : 01.4.2011 Judgment (Per : Shrihari P. Davare, J.) 01. Heard learned counsel for the parties. 02. This appeal is directed against the judgment and order dated 6.1.2000 rendered by the learned Judicial Magistrate, First 2 criapl-304.00 Class, Purna, District Parbhani, in Regular Criminal Case No.485 of 1997, thereby acquitting the respondents herein (original accused) for the offences punishable under Sections 326 and 324 read with Section 34 of the Indian Penal Code. 03. The factual matrix of the matter, which gave rise to the present appeal, is as mentioned below; It is the case of the prosecution that on 27.4.1997 at about 22.00 hours at village Satephal, in front of statue of Dr. Babasaheb Ambedkar, the accused persons, in furtherance of their common intention, asked the complainant Prabhakar Eknathrao Chavan as to why he had filed application for closure of their liquor shop, and they abused him. It is alleged that accused No.1 Bhagwant Chavan assaulted the complainant by an axe, and accused No.2 Dnyaneshwar Chavan caught hold of the complainant and accused No.3 Sakharam Jogdand also assaulted the complainant on his leg, by a stick. It is also alleged that due to the said assault, complainant sustained grievous hurt, and therefore, he lodged the complaint (Exh.33) on 28.4.1997, with Police Station, Purna, and consequently, offence came to be registered at CR No.52/1997, under Sections 326, 504 and 506 read with Section 34 of the Indian Penal Code, with the said police 3 criapl-304.00 station. Pursuant to the said FIR, investigation was carried out and it was revealed that the accused persons had committed the offence, and therefore, after completion of investigation, charge sheet came to be filed against respondents-orig. accused Nos. 1 to 3, before the learned J.M.F.C., Purna. 04. Accordingly, learned Judicial Magistrate, Purna, framed charge against the accused persons, on 9.1.1998 vide Exh.23 for offences punishable under Sections 326 and 324 read with Section 34 of the Indian Penal Code. However, the accused persons denied the charges levelled against them and pleaded not guilty to the same, and claimed to be tried. 05. To substantiate the charges levelled against the accused persons, the prosecution has examined inasmuch as 13 witnesses, as mentioned below. PW-1 Prabhakar Eknathrao Chavan - Complainant. PW-2 Uttam Eknathrao Chavan -Brother of the complainant and panch to the spot panchanama (Exhibit 36). PW-3 Gangadhar Munjaji Lokhande - Panch to the panchanama of seizure of axe (Exh. 38). PW-4 Baburao Tukaram Chavan -Eye witness. 4 criapl-304.00 PW-5 Dhuraji Limbaji Gawali - Panch to seizure pancha- nama of baniyan (Exh.42). PW-6 Ranoji Bhivaji Gaigodhane- Eye witness, who allegedly intervened between accused and complainant, during the quarrel. PW-7 Gangadhar Ranoji Gaigodhane- Son of PW-6, & eye witness PW-8 Dnyanoba Pandit Lokhande - Eye witness PW-9 Munja Marotrao Kadam - Eye witness PW-10 Rangnath Rambuwa Giri -Police Head Constable,who registered FIR (Exh. 33). PW-11 Kishansingh Sopansing Parihar -Police Head Constable and Investigatint Officer. PW-12 Syed Munir Gulab -Panch to seizure pancha- nama regarding seizure of stick (Exh. 53). PW-13 Dr.Sheshrao Abhanrao Gaiakwad -Medical Officer, who had examined the complainant and issued medical certi- ficate (Exhibit 60) 06. The defence of the accused persons is of total denial and they also stated that the complainant had contested and lost the election, and the accused persons belong to Shiv Sena group, and therefore, due to political enmity, the complainant has implicated them in the present case, falsely. However, the accused persons did not examine any defence witness. 5 criapl-304.00 07. After scrutinizing and analyzing the evidence adduced and produced on record, by the prosecution, the learned Judicial Magistrate, First Class, Purna, acquitted all the accused persons of the offences punishable under Sections 326 and 324 read with Section 34 of the Indian Penal Code, by judgment and order dated 6.1.2000, in R.C.C. No.485/1997, as stated earlier. Being aggrieved and dissatisfied by the said judgment and order of acquittal, the State has preferred the present appeal, challenging the same, and prayed for quashment thereof. 08. Before adverting to the submissions advanced by the learned counsel for the parties, it is necessary to scrutinize and analyze oral evidence adduced by the prosecution and in the said context, coming to the evidence of complainant-PW-1 Prabhakar Chavan, he stated that he knew the accused persons and that the incident took place on 27.4.1997 at about 10.00 p.m. in front of the house of PW-6 Ranu Gaigodhane, at village Satephal. He stated that the work of painting to statue of Dr. Babsaheb Ambedkar was going on and was under progress, which he had gone to see and while returning back, the accused persons asked him, in front of the house of PW-6 Ranu Bhivaji, that why he had given application to close their business of liquor, and accused Nos. 2 6 criapl-304.00 and 3 dealt him by stick, whereas accused No. 1 gave an axe blow on his leg and back and, therefore, he sustained injury on upper part of left side shoulder. Upon the said assault, the complainant raised hue and cry, and therefore, PW-3 Gangadhar Lokhande, PW-6 Ranu Bhivaji and PW-8 Dnyanu Lokhade came on the spot and intervened into the said quarrel. However, complainant PW-1 Prabhakar claims that he sustained grievous injuries and blood was oozing from therefrom, and hence, he went to police station, but he was first referred to the hospital for medical examination and was treated, accordingly. Thereafter, police personnel reduced his report into writing (Exh.33) and an offence was registered against the accused persons under CR No.52 of 1997 under Sections, 326, 504, 506 read with Section 34 of the Indian Penal Code. PW-1 complainant identified the stick and axe as Articles A and B respectively, contending that at the time of the incident, he wore a baniyan, which he identified as Article C. 09. During cross examination, PW-1 stated that the distance between village Satephal and Purna is about 18 kilometers and he came to Purna, on the relevant day, at about 12.00 p.m., by his own jeep and gave oral report to the police personnel, when he returned back from the hospital, but he could not tell time thereof. He also stated that he was in the hospital for about one hour, but 7 criapl-304.00 could not tell the time as to when he had been to the hospital. He further stated that Dr. Gaikwad was the Medical Officer present in the hospital, at the relevant time. He also admitted that there are some houses surrounding the house of PW-6 Ranu Gaigodhane, i.e. the houses of Naroji Kadam, Gayabai Lokhande and Holaji Gaigodhane. He stated that at the time of incident, 2-3 persons had gathered, but after lapse of time, some 10-20 persons had gathered. He further stated that PW-3 Gangadhar Lokhande, PW-6 Ranu Gaigodahne and PW-8 Dnyanu Lokhade intervened in the said matter. He, however, stated that he cannot tell the names of other persons, who had gathered at the spot. PW-1 complainant further stated that distance between the statue of Dr. Ambedkar and the house of PW-6 Ranu Gaigodhane is about 200 to 300 ft. He further stated that 4-5 persons were present near the statue of Dr. Ambedkar, but nobody from them came on the spot. He further stated that there is a police chowki at village Chudawa, of Police Station, Purna, but since there was nobody available at the said police chowki, he neither went to the said police chowki, nor did he submit there, a copy of the application against the accused persons. 10. The suggestions were given to complainant PW-1 Prabhakar, and although he denied that he is Taluka President of 8 criapl-304.00 Shetkari Sanghatana, he admitted that he was party worker of the said Sanghatana. He also admitted that he had contested election from Basmat Assembly constituency and Mr. Mundada was his opposite candidate. He also admitted that he was defeated in the election, due to securing less votes. He, however, stated that he was not aware whether the accused persons had participated in the said election and helped the opposite candidate Dr. Mundada and, therefore, a suggestion was given to him that due to opposite activities by the accused persons, he implicated them in the present case, falsely. He admitted that accused No. 1 is from his relations (bhavaki). He further stated that he does not know whether the police had mentioned the name of accused No. 1 as Bhagwat Naroji Jogdand, in stead of Chavan. He denied the suggestion that the alleged incident did not occur and the accused did not assault him. He further denied that Chabu Shriram Lokhande is his brother-in-law, or Sahebrao is his cousin or that sister of Chabu Lokhande has been given in marriage to said Sahebrao. 11. Coming to the deposition of PW-2 Uttam Chavan, panch to the spot panchanama (Exh.36). He stated that on 28.4.1997, he was called by police personnel to act as panch witness for spot panchanama, in front of house of PW-6 Ranu Gaigodhane and at 9 criapl-304.00 that time, complainant and another witness were present. The complainant showed the place of incident and the police prepared the spot panchanama and he signed the same. (Exh.36). 12. During the cross examination, this witness has admitted that the complainant is his brother and his father's name and name of complainant's father is the same i.e. Eknath, and that the complainant belongs to his bhavki, and therefore, a suggestion was given to him that the complainant is his brother, but same was denied by him. 13. That takes me to the deposition of PW-3 Gangadhar Lokhande, panch to the panchanama of seizure of axe (Exh.38). He stated that on 28.4.1997, he was called by the police to act as a panch and accordingly, he went to the house of accused No.1 and police prepared seizure panchanama and he signed the same. He identified the axe before the court, which is marked as Article B. 14. In cross examination, he stated that seizure panchanama was prepared by police personnel at 6.00 p.m. and while seizing axe, he had seen it, and hence, he identified it before the court. Suggestion was given to him that the complainant is his relative, and hence, he is deposing falsely, but he denied the same. 10 criapl-304.00 15. That takes me to testimony of PW-12, Syed Munir Gulab, panch to seizure panchanama of stick (Exh.53). He deposed that the police personnel had called him to act as panch in front of house of accused No.3 Sakharam. He further stated that there was one stick and one axe, and accused No.3 handed over the stick to police and police prepared seizure panchanama of it. (Exh. 53). He identified the said stick before the court, as Article A. 16. In the cross examination, the witness stated that he does not remember the date of seizure panchanama, but it was prepared at about 5.00 pm to 5.30 p.m. The witness further stated that there was one axe at the time of spot panchanama and it was seized by police personnel. He also stated that he did not know why police had not mentioned in seizure panchanama (Exh. 53) that there was one axe and it was seized under panchanama. The suggestion was given to him that the police did not read over the contents of Exh. 53 to him, but he denied the same. It was also suggested to the witness that there were good relations between him and the complainant, and therefore, complainant brought him to the court, but the same was denied. The suggestion was also given that no panchanama was prepared by the police in his presence and stick was not seized thereunder, but he denied the same. 11 criapl-304.00 17. Turning to the eye witness account, PW-4 Baburao Munjaji Lokhande stated that he knows the accused persons, as well as complainant Dr. Chavan, and that the incident in question took place on 27.4.1997, at about 10.00 p.m. in front of the house of Ranoji Gaighodane (PW-6) at village Satephal, and at the relevant time, he was in his house. He stated that he heard the noise and, therefore, came out of the house and went to the spot and found that there was incident of assault. The complainant Dr. Chavan and all three accused persons were present at the spot. He further stated that accused No.3 Sakharam gave a stick blow on the leg of the complainant, whereas accused No. 1 Bhagwat gave an axe blow on the back of the complainant, and accused No.2 Dnyaneshwar also assaulted the complainant, because of which the complainant sustained injuries. The witness has further stated that there were 2-3 houses in between his house and the place of incident, as well as there was light facility available at the spot of the incident. He identified the axe and stick (Articles A and B), as well as accused persons in the court, and stated that they were selling illicit liquor in the village and, since the complainant Dr. Chavan asked them not to sell illicit liquor in the village, the incident occurred. 12 criapl-304.00 18. In the cross examination, the witness admitted that the complainant is a leader of the Shetkari Sanghatana and at the relevant time, he was Taluka President and now he is the District President of the said Sanghatana. The witness also stated that the complainant had contested the election for M.L.A. from Basmat Constituency. He has also admitted that the complainant is the leader of Shetkari Kamgar Paksha, but denied that there was alliance between the said Shetkari Kamgar Pakshs and Shetkari Kamgar Sanghatana, in the above said election. Further, he stated that the distance between the place of the incident and his house is about 100 ft. However, he could not state how many persons had gathered at the spot, before he reached there, and stated that on reaching the spot, he found that the complainant and all the accused were present there. He further stated that house of accused No.3 Sakharam is adjacent to the house of Ranu Gaigodhane (PW-6) and distance between house of PW-6, accused No.3 and statue of Dr. Ambedkar, is about 50 to 60 ft. He also stated that out of 5-6 members from the family of PW-6 Ranu, no one was present on the spot. Hence, suggestion was given to him that since he had friendly relations with the complainant, he is deposing falsely, but same was denied by him. It was suggested to him that the accused are having rival relations with complainant, and hence, he was deposing falsely, but he denied the same. 13 criapl-304.00 19. Coming to the deposition of next eye witness i.e. PW-6 Ranoji Gaigodhane. He stated that he knew the accused persons, as well as the complainant Prabhakar. He also stated that the incident took place in the night, when he had slept in the house and he heard loud noise in front of his house and, therefore, he woke up and came at the door and found that all the accused persons and the complainant were present there and quarrel was going on between them and they were assaulting each other, and therefore, he intervened into the matter, but thereafter also, there was incident of assault in between the complainant and the accused persons. He further stated that accused No.3 Sakharam assaulted the complainant, by stick, whereas accused No.1 Bhagwat assaulted the complainant, but he could not tell the weapon used by him. Again he stated that accused No.1 assaulted the complainant Prabhakar by an axe, as a result of which the complainant sustained blow on his back. However, he stated that accused No.2 Dnyaneshwar did not assault the complainant, in his presence. He further admitted that he cannot tell the time of the incident, but it was night time. He stated that there was dark at the time of the incident, and he identified the accused approximately, when he intervened into the incident. 14 criapl-304.00 20. In the cross examination, the witness has admitted that his eye sight is weak, and also admitted that he is suffering from asthama. He admitted that the complainant brought him and his son to the court, by jeep, on that day. However, he denied the suggestion that he deposed as per the instructions of the complainant. He further stated that there is house of accused No. 3 Sakharam to the east side of his house and thereafter, public road is situated. Moreover, he stated that there were 7-8 persons present at the time of incident, but he could not tell the names of those persons. He also admitted that there was dark at the time of the incident and, therefore, he was given suggestion that he did not see the incident, but he denied the same. He further stated that distance between the statue of Dr. Babasaheb Ambedkar and his house, is about 100 to 125 ft. He further stated that he did not know whether there are inimical terms in between the complainant and the accused, and hence, it was suggested to him that the accused did not assault the complainant, but he denied the same. 21. Coming to the next eye witness PW-7, namely, Gangadhar Ranoji Gaogodhane. He stated that he knew the accused persons and the complainant, and further stated that PW-6 Ranoji is his father. According to this witness, incident took place two years 15 criapl-304.00 back at about 10.00 p.m. to 10.30 p.m. in front of his house, and on hearing noise, he came out of his house and saw that accused No.3 Sakharam assaulted the complainant, by stick on his right leg. Moreover, he stated that accused No.1 Bhagwat had given an axe blow on the back of the complainant and hence, he intervened into the quarrel. He further stated that there was dim light in his house and light was reflected towards the spot of the incident. 22. In the cross examination, the witness has stated that before he reached the spot of incident, only complainant Prabhakar, accused No. 2 Dnyaneshwar and accused No.3 Sakharam were present at the spot. As regards distance, he stated that the distance between the statue of Dr. Ambedkar and his house is about 80 ft., but nobody came on the spot, from the said statue. He admitted that complainant Prabhakar brought him to the court, on the said day, by jeep. Hence, witness was suggested that he was deposing on instructions of the complainant, but the same was denied by him. 23. That takes me to the next eye witness PW-8 Dnyanoba Pandit Lokhade. He stated that he knew the complainant and the accused and that the incident took place about 1-1/2 years back in front of the house of PW-6 Ranoji Gaigodhane, at about 8 to 8.30 16 criapl-304.00 p.m. He stated that after taking dinner, he was about to go to bed and at that juncture, he heard noise of quarrel and hence, proceeded to the place of incident and found that the accused were asking the complainant as to why he had given complaint regarding their business of illicit liquor. He further stated that accused No. 2 had caught hold of the complainant, whereas accused No. 3 was armed with stick and accused No.1 was armed with an axe and accordingly, accused No. 3 assaulted the complainant on his right leg, by stick, whereas accused No.1 gave an axe blow on right shoulder of the complainant. The witness has further stated that he and PW-6 Ranu intervened into the matter. 24. In the cross examination, he stated that the distance between his house and the place of the incident was about 80 to 100 ft. and there was about 4-5 houses in between his house and the place of the incident. He stated that there was dark at the time of incident, but there was light in front of the house of PW-6 Ranu Gaigodhane and that the incident took place at a distance of about 12 to 15 ft. from the house of PW-6 Ranu. As regards injuries, he stated that the complainant received injury on his back, due to assault by an axe, as well as he received bleeding injury to his shoulder. The witness has admitted that the 17 criapl-304.00 complainant is his maternal uncle, and therefore, the suggestion was given that due to the said relations, he is deposing falsely, but the same was denied. However, he admitted that the complainant took him to the court on that day, by jeep, but denied the suggestion that he deposed as per instructions of the complainant. 25. Coming to the last eye witness PW-9 Munja Marotrao Kadam, he stated that he knew the complainant Prabhakar, as well as the accused persons. He stated that the incident took place on 27.4.1997 at about 8.30 p.m. in front of house of PW-6 Ranu Gaigodhane when he was at his house and when he heard noise of the quarrel and came out of the house, he found that accused Nos. 2 and 3 were asking the complainant as to why he had given complaint regarding their business of sale of illicit liquor. Thereupon, the complainant replied that he did not give any complaint and at that time, accused No.2 Dnyaneshwar caught hold the complainant, and accused No. 3 Sakharam assaulted the complainant on his back and leg, whereas accused No.1 Bhagwat gave an axe blow on the back of the complainant Prabhakar, due to which he sustained bleeding injury. He further stated that PW-8 Dnyaneshwar and PW-7 Gangadhar intervened into the matter. He stated that he witnessed the incident and police personnel enquired with him and recorded his statement. 18 criapl-304.00 26. During the cross examination, PW-9 Munja stated that there is house of Police Patil in between his house and the house of Dnyanu Gaigodhane, but nobody came out of the house of Police Patil. He further stated that when he saw the incident, the accused and the complainant only were present there, and the quarrel of exchange of words continued for five minutes. He denied the suggestion that there was dark. He also denied that the complainant is his relative. He further denied that there was dispute between the complainant due to elections. 27. Coming to the medical evidence of Dr. Sheshrao Gaikwad (PW-13), he stated that on 28.4.1997, he examined the complainant who was referred to him by Police Station, Purna, and he noticed following injuries on his person:- 1. Lacerated wound over left scapular region in supra scapula region. Size 6x2 cms. spindle shape clear cut margins horizontal directions. Caused within six hours. 2. Contusion over right leg. Size 18x4 cms. swelling over calf.' He stated that the age of the injuries was within six hours and injury No.1 might have been caused due to hard and sharp weapon, whereas injury No.2 might have been caused by hard and 19 criapl-304.00 blunt object. Accordingly, he issued medical certificate which is at Exhibit 60. He also stated that injury No.1 can be caused by an axe, whereas injury No. 2 can be caused by stick. Accordingly, he stated that injury No. 1 can be caused by article B-axe and injury No.2 was possible by article A i.e. stick, which was shown to him. 28. In the cross examination,