1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD CRIMINAL APPEAL NO. 590 OF 1996 Vishram s/o Rupa Sonawane, Aged 25 years, Occupation Agriculture, R/o Hanumantkhede, Taluka Erandol, District Jalgaon Appellant V E R S U S The State of Maharashtra Respondent Mr. S.R. Barlinge, Advocate for the appellant Mr. T.S. Lodhe, APP for the respondent / State CORAM : A. V. NIRGUDE, J. DATE : 28th September, 2010 ORAL JUDGMENT 1. This appeal is filed against the Judgment of conviction and sentence, passed by the learned 5th Additional Sessions Judge, Jalgaon, dated 30th September, 1996, in Sessions Case No. 45 of 1991. 2. The appellant was the accused No.1 in the Sessions Case. There were 17 other accused who were charged for committing offence of rioting and attempt to commit murder. The facts leading to this case can be narrated as under : 3. At Village Hanumantkhede, Taluka Erandol, District Jalgaon, prior to October, 1990, there were two political groups. The complainant (PW 2) Chavdas belongs to Shivsena Party and had his group. The appellant belongs to rival group of Congress-I. Prior to the incident that occurred on 20th October, 1990, bickering between these two groups were going on. The complainant, PW 2, had filed a criminal complaint against other accused Uttam on 20th October, 2 1990, at about 10.00 a.m. by visiting the Police Station Dharangaon. He came back to the village at about 04.00 pm. At 05.30 pm., while he was sitting in front of his house, other accused Uttam came and started abusing him. The appellant and others soon joined him and there occurred a violent incident. All of them assaulted the complainant in presence of the witnesses. It is alleged that the appellant had an axe in his hand and he dealt blows of the axe on the head and shoulder of the complainant. The complainant sustained injuries also because of blows of sticks etc delivered by the other accused, who are not before this Court. The complainant sustained bleeding injuries and was rushed to the police station. At about 08.45 pm. on that day he lodged his complaint and offence under Sections 147, 148, 149, 307 of the Indian Penal Code was registered against the appellant and others. After the investigation, the charge-sheet was filed. 4. The prosecution case mainly depends on the depositions of P.W. 2 to 5. The PW 3 to 5 were the eye witnesses. All these witnesses reiterated the case of the prosecution that it was the appellant who dealt axe blows on the head and shoulder of the complainant. The prosecution witness No. 6 Dr. Gangadhar confirmed in his deposition that the complainant was brought to his Dispensary on the same day and he found three injuries on his person, viz; (1) Incised injury on left shoulder, 2” x 1” deep, (2) Incised injury on left occipital region 5” x bone deep, and (3) C.L.W. on right thumb 1” x 1/2” deep. 5. The learned Judge of the trial Court essentially believed the prosecution case only as against the appellant, because the evidence as against the appellant was consistently coming from the prosecution witnesses No. 2 to 5. He disbelieved the case of the prosecution as against the other accused. He also held that since the incident was of “a sudden and free fight”, no constructive liability can be imposed on 3 other accused. He said, each accused can be convicted for the injuries caused by them individually. He placed reliance on the Judgment of Supreme Court in the case of R.K. Pande v. M. P. (AIR 1975 S.C. 1026). There is no difficulty in accepting this proposition and it can indeed be said that the appellant was apparently the author of the injuries caused to the complainant. 6. The defence of the appellant and other accused was that on the same day the complainant and members of his party had launched violent attack on the appellant and others and they caused injuries to them. When they suggested this to the PW 2 to 5, they flatly refused the suggestion. They simply admitted that a counter-case was filed and was pending against them. They did not admit that the appellant and others too had sustained bleeding injuries on that day. In this background, the evidence of the PW 6 Dr. Gangadhar, the Medical Officer, supports the defence of the appellant and others. He admitted in the cross-examination that on the very day he even examined the appellant and three others, who belonged to other group. He admitted having issued four medical certificates in respect of the injuries to the appellant and three others. These injury certificates are on record and are at Exh. 55 to 58. On perusal of these injury certificates, it is found that the members of other group also sustained serious injuries on their heads. The appellant himself had sustained two contused lacerated wounds, one on head and other on waist. He was also found to have suffered fracture on right hand finger. 7. In addition to this, the Investigation Officer, PW 7 admitted in his cross-examination that he had recorded complaint of one Uttam against the prosecution witnesses in this case and had referred the injured in that case to the Medical Officer. He further admitted that the injuries suffered by those persons were of serious nature. The learned Judge of the trial Court, it seems, did not give any importance 4 to the failure of PW 2 to 5 to give explanation in respect of injuries sustained by the appellant and other accused. It seems, he was not aware of the well known Judgment of the Supreme Court in the case of Lakshmi Singh and ors. V. State of Bihar (AIR 1976 S.C. 2263). In this case, Supreme Court held as under : “In a murder case, the non-explanation of the injuries sustained by the accused at about the time of the occurrence or in the course of altercation is a very important circumstance from which the Court can draw the following inferences : (1) that the prosecution has suppressed the genesis and the origin of the occurrence and has thus not presented the true version; (2) that the witnesses who have denied the presence of the injuries on the person of the accused are lying on a most material point and therefore their evidence is unreliable; (3)that in case there is a defence version which explains the injuries on the person of the accused it is rendered probable so as to throw doubt on the prosecution case.” 8. Since this Judgment was not shown to the learned Judge of the trial Court, it seems, he could not appreciate the evidence of the prosecution witnesses in right perspective. As said above, his approach was rather pedantic when he said that he would believe the prosecution witnesses because they consistently accused the appellant being the author of all the injuries on the person of the complainant. Obviously, the prosecution witnesses were not disclosing the entire incident. They suppressed the genesis of the occurrence and their evidence thus has become untrustworthy. In view of this, the prosecution case should fail even as against the appellant. The appeal is allowed. The impugned Judgment stands set 5 aside. The appellant is acquitted of the offence punishable under Section 324 of the Indian Penal Code. ( A.V. NIRGUDE, J. ) SRM/criapl/590/96/28910ok