1 APEAL 348 OF 1991 vks IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NO.348 OF 1991 The State of Maharashtra .. Appellant -versus 1. Rajjak Imam Tamboli, age : 55 years, 2. Popat Imam Tamboli, age: 34 years, 3. Dulekhan Imam Tamboli, age: 44 years, 4. Baban Imam Tamboli, age: 38 years, 5. Noorkhan Imam Tamboli, age: 47 years, 6. Jamalbi Rajjak Tamboli, age: 30 years, 7. Miyanbi Dulekhan Tamboli, age: 36 years, 8. Shikandar Baban Tamboli, age: 19 years, 9. Balekhan Imam Tamboli, age: 20 years, 10. Rehana d/o Dulekhan Tamboli, age: 18 years .. Respondents. All resident of Nimsod, Tal: Khatav, District: Satara. Mrs. V. R. Bhosale, APP for the State. 2 APEAL 348 OF 1991 None for the Respondents CORAM: R.C. CHAVAN, J. DATED: 8th November, 2011. ORAL JUDGMENT 1. This is an appeal by State, questioning acquittal of 10 respondents by the learned Judicial Magistrate First Class, Vaduj, District: Satara, for the offences punishable under Sections 147, 148, 149, 452, 324, 323 of the Indian Penal Code. 2. Facts which are material for deciding this appeal are as under:- Respondents and prosecution witnesses Dilip and Rejendra Mohire were the neighbours. There was some dispute between the respondents and the family of Mohires in respect of common wall separating their houses. On 20th January, 1984 at about 6.00 p.m, respondents are alleged to have formed an unlawful assembly and entered the house of Rajendra. They first beat up Dilip and then when Rajendra intervened, he too was beaten up. It is alleged that their mother Vatsala was also beaten by respondent Nos 6, 7, 9 and 10. One Lalasaheb Patole was attracted to the spot and he tried to intervene. Dilip and Rejendra, were referred by police to the Medical Officer, who found that they had sustained some minor injuries. On the report by Dilip an offence was 3 APEAL 348 OF 1991 registered and investigation commenced. In the course of investigation iron rod which was supposed to have used by the respondent No.3- Dulekhan for assaulting Dilip had been recovered at the instance of Dulekhan. On completion of investigation chargesheet was sent. 3. Learned Judicial Magistrate First Class, Vaduj, charged the respondents for offence punishable under Sections 147, 148,149, 452, 324, 323 of the Indian Penal Code. Since they pleaded not guilty and claimed to be tried, they were put on trial at which the prosecution examined in all 7 witnesses in its attempt to bring home the guilt of the respondents. The defence of the respondents was that of denial. Upon considering the prosecution evidence in the light of defence raised, learned Magistrate held that the charges were not proved and proceeded to acquit the respondents of the offences charged. Aggrieved thereby State has preferred this appeal. 4. I have heard the learned Additional Public Prosecutor for the State, but did not have benefit of hearing learned counsel for the respondents. With the help of learned Additional Public Prosecutor, I have gone through the entire record. 4 APEAL 348 OF 1991 5. P. W.1 Dr. Jadhav stated having examined P.W.2- Dilip and P.W-3 Rajendra. He found that Dilip had contused lacerated wound on the right parietal region, two contusions, one over the right thigh and the other over back between scapular region. He found that Rajendra had abrasion over right forearm and contusion over the lumber region. The Medical Officer stated in his cross examination that the injuries were superficial and minor and could be possible by fall as well. He did not notice any bleeding in the injuries examined by him. This evidence by medical officer about examination of the victims at about 2 a.m. after the incident of 6 p.m. of the previous evening has to be contrasted with the evidence of PW-2 Dilip and PW-3 Rajendra about attack by respondents on them. 6. P.W.2 Dilip states that he returned home at 6 p.m. He saw fighting in progress in Varanda of his house. He saw that Rajjak Imam Tamboli, Popat Imam Tamboli, Dulekhan Imam Tamboli, Nurekhan Imam Tamboli were beating his brother Rajendra who was lying in Veranda. Rajendra himself stated that the accused persons gave abuses and the accused No.5 Noorkhan caught him by neck and was pressing him upon wall, when the other accused persons were beating him with their hands. P.W.2 Dilip has stated in his cross examination that when he reached his house, he saw fighting 5 APEAL 348 OF 1991 in progress in Veranda. He saw his brother Rajendra lying on the floor with his back facing sky. Learned APP, therefore states that since Rajendra was lying with his face towards floor, he could not have seen all his assailants and therefore, according to learned APP, learned Magistrate was not justified in disbelieving the evidence of these two witnesses, because the persons who assaulted Rajendra were not named by him. 7. However, since P.W -2 Rajendra does not state that he was lying on the ground and that Noorkhan caught him by neck and pressing him upon the wall and therefore, there would be no reason for him not to notice assailants. Apart from this learned Magistrate has found that the evidence of two witnesses about assault is discrepant and does not inspire confidence. Both of them had stated about presence of their mother and also that their mother was assaulted. But curiously she has not been examined as a witness. It had been stated by the brother that rod was brought by one of the accused persons from his house, Rod which was seized and shown to the witness is one which is used for hanging scales in the grocery shop. It is of the same type which was used in the shop of complainant which was situated in the Veranda. Therefore, the learned Magistrate did not believe the version that the respondents had brought rod to launch the assault on P.Ws. 2 and 3. In any case it cannot be said that learned 6 APEAL 348 OF 1991 Magistrate could not have drawn inference that the injuries sustained by P.W. Nos 2 and 3 were far too insignificant as compared to the assault described by them. 8. P.W.4 and P.W.6 are panchas on the recovery of rod. While P.W.4 has turned hostile, though P.W.6 Avinash Gajanan Vedpathak supported the prosecution, in cross examination he admitted that when he reached, rod was already lying on the table at the police station and that he had not actually seen from where the iron rod was brought. 9. P.W. 5 Lalasaheb Patole is eye witness. Lalasaheb himself had no business to be at the spot since his house or properties are not situated near the spot. He admits in paragraph 3 of his cross examination that he happened to be at the spot by chance. There are several improvements by this witness in his evidence before the Court and on being confronted with his police statement, he admitted that those portions were not to be found in his statement. It was suggested to the witness that he was in the business of illicit distillation of liquor alongwith P.W. Dilip Mohire and therefore, deposing falsely, but the suggestion was denied. P.W.7 – P.S.I- Latif Pathan who has conducted investigation and filed chargesheet. 7 APEAL 348 OF 1991 10. As already stated the learned Magistrate refused to believe the account of P.Ws 2 and 3, first, because their account of the incident is not supported by the type of injuries found on their person by P. W.1 Dr. Jadhav. Secondly, though their mother Vatsala was supposed to have been injured in the incident, she has not been examined. No neighbour was examined, though the incident took place at about 6.00 p.m, and not in the dead night, and instead, a chance witness P.W. 5- Lalasaheb Patole has been examined. Recovery of rod, which was allegedly used by one of the miscreants, is doubtful and it cannot be said that the learned Magistrate erred in concluding that the rod could have been from the grocery shop of the victims themselves. 11. Even so learned Additional Public Prosecutor submitted that ordinarily injured persons would have no reason to name wrong persons as assailants and therefore, their evidence should not be lightly discarded. She submits that the reasons given by the learned Magistrate in rejecting the evidence of P.Ws 2 and 3 are grossly inadequate and show perverse application of logic. There can be no doubt about the proposition that ordinarily an injured person would not name wrong persons as perpetrators of crime shielding the real offenders. This would be valid when the injuries are so serious that they could not have been caused by accidental 8 APEAL 348 OF 1991 fall. When two parties have long standing disputes, as is admitted by P.W.2 and 3, the possibility of taking advantage of a scratch here or a contusion there to rope in 10 members of a neighbouring family and to accuse them of serious crime cannot be lost sight of. Therefore, though as suggested by the learned APP, another view of the matter may also possible since it is not shown that the view taken by the learned Magistrate was thoroughly untenable or perverse, it cannot be said that the acquittal recorded by the learned Magistrate was incorrect. Learned Magistrate had the benefit of seeing witnesses in person. The conclusions drawn by him are solely based on appreciation of evidence by him. Therefore, since the conclusions drawn are neither illegal nor perverse, they cannot be lightly disturbed by this Court. In view of this the appeal is dismissed. (R. C. CHAVAN, J.)