Cr.Appeal/202/1994 1 IN THE HIGH COURT OF JUDICATURE OF BOMBAY BENCH AT AURANGABAD CRIMINAL APPEAL NO.202 OF 1994 The State of Maharashtra ..Appellant VERSUS 1.Madhukar Deorao Rajurkar aged 19 years, Occ.Agriculture, R/o Asman Ganj Mohalla, Parbhani. 2.Paras Pralhad Pashte Aged 20 Years, Occ. Education, R/o Parbhani. 3.Rajesh Pralhad Pashte Aged 28 Years, Occ. Education, R/o Parbhani. 4.Nagesh Pralhad Pashte Aged 24 Years, Occ. Agriculture R/o Parbhani. 5. Pralhad Sakharam Pashte Age 48 years, occ. Agriculture, r/o Asman Ganj Mohalla, Parbhani. ..Respondents ... Shri N.B.Patil, APP for the appellant and Shri S.S.Choudhari, Advocate for respondents. ... CORAM : A.H.JOSHI & A.R.JOSHI, JJ. Dated : September 20, 2011 ORAL JUDGMENT : (Per A.R.JOSHI, J.) :- 1. Heard rival submissions on this Criminal Appeal, preferred by the State of Maharashtra Cr.Appeal/202/1994 2 challenging the judgment and order of acquittal passed in Sessions Case No.7 of 1993, by the learned Additional Sessions Judge, Parbhani, dated 7.2.1994. 2. By the impugned judgment and order, all five accused/present respondents were acquitted of the offences punishable under Sections 147, 148, 302, 323, 504 read with 149 of the Indian Penal Code ("IPC" for brevity) and Section 135 of the Bombay Police Act. 3. The case of the prosecution, in nut shell, is as under:- The complainant, along with his family members, including his young daughter, aged about 16 years or so, was residing at Bhajan Galli, Asman Ganj area at Parbhani. Accused Nos.1 to 5 were also residents of the same locality. Accused Nos.2 to 4 were staying with their father accused No.5. Accused Nos.1 to 3 were in habit of teasing the daughter of complainant. Said girl, by name, Nirmala, when used to go to her school and to her tuition classes, accused Nos.1 to 3 were following her and were also teasing her. She had complained Cr.Appeal/202/1994 3 to that effect to her parents and on this count, there was a quarrel between the complainant - father of the girl and accused persons. 4. On 2.10.1992 there was some quarrel on account of accused Nos.1 and 2 eve teasing the girl and on that day, accused No.1 had stabbed Prabhakar - son of the complainant. On that count, a report was lodged with Nanal Peth Police Station, Parbhani. 5. On 3.10.1992 and 4.10.1992, similar such eve teasing incidences occurred as accused Nos.1 to 3 were taking rounds on the motor-cycle around the house of the complainant. The fateful incident occurred on 5.10.1992 at about 8.30 p.m. It was the auspicious day of Dasara festival. On that night, brother-in-law of the complainant had been to the house of the complainant for such an auspicious occasion. Said brother-in-law - victim Sadashiv and family members of the complainant were cheat- chatting and were sitting in the veranda outside the house of the complainant. That time, accused Nos.1 to 3 came on the spot on the motor-cycle. The complainant pointed out towards them, mentioning to Cr.Appeal/202/1994 4 the deceased that those were the boys teasing his daughter Nirmala. At that time, there was some hot exchange of words and accused Nos.1 to 3 got down from the motor-cycle. Accused Nos.1 and 2 temporarily left the spot, while accused No.3 remained there abusing the complainant and his family members. Accused No.4 joined him and started abusing. After sometime, accused Nos.1 and 2 came on the spot and joined their brothers. All the four accused started abusing and assaulting the complainant. Deceased Sadashiv intervened. At that time, accused No.1 took out a knife and gave blows on the chest, abdomen and other parts of body of Sadashiv, causing severe bleeding injuries. Apparently, at that time, various persons gathered and in the mob, accused No.5, father of accused Nos. 2 to 4 was also present, and allegedly, he instigated accused Nos.1 to 4 to teach a lesson to the complainant and his family members. 6. After the assault, all the accused left the spot. Victim was taken to the hospital. He subsequently died. Usual investigation procedure was adopted and different panchanams were conducted. Cr.Appeal/202/1994 5 7. The case of the prosecution mainly rests on the three eye witnesses i.e. complainant Raghunath (PW 1), his son Prabhakar (PW 2) and brother of deceased, namely, Prakash (PW 3), who was also present during the incident. 8. It is an admitted position that various panchanamas, excluding the recovery of knife at the instance of the accused No.1, were admitted by the defence. Moreover, the homicidal death of Sadashiv was also admitted so also the arrest and seizure of clothes of the accused. As such, what remained for determination by the learned Additional Sessions Judge was the trustworthiness of the eye witnesses and the proof or otherwise as to applicability of Section 149 of IPC, inasmuch as all the five accused holding common object to kill Sadashiv. 9. We have gone through the reasoning given by the learned Additional Sessions Judge in arriving at the conclusion that the prosecution has failed to establish the offences punishable under Sections 147, 148 and 149 of the IPC, inasmuch as, there was Cr.Appeal/202/1994 6 no role attributed to accused No.5, who was admittedly the member of the mob, which had gathered on the spot after the incident. We have observed that the substantive evidence of all three eye witnesses i.e. PW 1 Ragunath, PW 2 Prabhakar and PW 3 Prakash do not in any way implicate accused No.5, so far as his active role or at-least sharing of the common object of the co-accused Nos.1 to 4 is concerned and the reasoning given by the learned Additional Sessions Judge do not warrant any interference for coming to the conclusion that the prosecution has failed to establish the offence of unlawful assembly, armed with the deadly weapons. 10. Secondly, we have observed that the substantive evidence of the eye witnesses mention that one Gulabrao Bapurao, Tukaram Sase and other persons, known to the complainant, were on the spot. Moreover, in the first information report, complainant Raghunath has disclosed the names of the said eye witnesses and also mentioned the names of Chandrakant Sonavane, Bhagwat and Sanjay as alleged eye witnesses. In consonance of this, it is the substantive evidence of Investigating Officer Shri Cr.Appeal/202/1994 7 Dhande that he recorded the statements of these eye witnesses during the course of the investigation. In spite of such case of the prosecution, all these eye witnesses were not examined by the prosecution and this circumstance weighed much with the learned Sessions Judge about the case of prosecution and consequently drawing an adverse inference against the prosecution. It was also weighed with the learned Additional Sessions Judge that much crowd had gathered on the spot, however, none of them were enquired by the police or examined by the prosecution during the trial and only very close relatives of the complainant were examined. On this aspect, the learned Additional Sessions Judge critically discussed the substantive evidence of these alleged eye witnesses PW 1 to PW 3 and considering the topography of the area, place of offence on the road abutting the veranda of the house of the complainant and further considering the position at which these witnesses were present, came to the conclusion that their testimony cannot be safely relied upon. Certain contradictions and omissions from their statements have also prompted the learned Additional Sessions Judge to come to the Cr.Appeal/202/1994 8 conclusion that, here in this matter, the alleged eye witnesses are not worthy of credence. It was also weighed with the learned Additional Sessions Judge that these three alleged eye witnesses had deposed different versions as to the happening of the incident and as such in the ultimate analysis, the learned Additional Sessions Judge dis-believed these witnesses giving doubt in favour of the accused persons and consequently came to the conclusion of acquittal of all the accused from all the offences charged. 11. Considering the scope of this Court in the matter of appeal against acquittal and also considering the reasoning given by the learned Additional Sessions Judge, in our view, there is nothing to entertain the present appeal and come to a different conclusion than that arrived at by the learned Additional Sessions Judge, more so, when the judgment and order of acquittal is of the year 1994 and about 17 years have lapsed so far. 12. In the result, there is no merit in the present appeal preferred by the state and the same Cr.Appeal/202/1994 9 is accordingly disposed of with the following order. ORDER Criminal Appeal No. 202 of 1994 (The State of Maharashtra Versus Madhukar Deorao Rajurkar and others) stands dismissed. (A.R.JOSHI, J.) (A.H.JOSHI, J.) ... akl