1 criap5005.10 IN THE HIGH COURT OF JUDICATURE AT BOMBAY, BENCH AT AURANGABAD CRIMINAL APPLICATION NO. 5005 OF 2010 The State of Maharashtra Applicant - complainant vs Ananda Laxman Karle and ors. Respondents - accused ------- Smt. Y.M.Kshirsagar, A.P.P. for the applicant-State. Shri Vinod Y. Bhide, Advocate for the Respondents. Coram : Shrihari P. Davare, J. Date : 6th May 2011. P. C. 01. Heard learned counsel for the parties. 02. This is an application preferred by the applicant-State (original complainant) seeking leave to file appeal, challenging the judgment and order dated 11.6.2010 rendered by the learned Additional Sessions Judge, Sangamner, in Sessions Case No.25 of 2007, thereby acquitting the respondents-accused for the offences punishable under Sections 143, 148, 323 read with section 149, 504 r/w Section 149, 506 r/w Section 149 of Indian Penal Code, Section 37 (1)(3) r/w Section 135 of the Bombay Police Act and Section 3(1)(x) of the Scheduled Caste and Scheduled Tribe (Prevention of Atrocities) Act. 2 criap5005.10 03. I have perused the copy of the impugned judgment and order dated 11.6.2010, as well as perused the record and proceedings, with the assistance of the learned counsel for the parties. 04. Briefly stated, the facts of the case are that the complainant Ashok Karbhari Arane, is the resident of village Kasare, Taluka Sangamner, along with his wife and children. His parents, brother Machindra and wife of Machindra along with their children also reside in the same village. They belong to Hindu Matang caste which is a scheduled caste. The complainant Ashok and his brother Machindra were separated about three years before the incident. Accordingly, residential house of the family was allotted to the share of Machindra, and therefore, complainant Ashok raised a temporary structure on adjacent plot admeasuring 30 ft x 20 ft. for his residence. However, when the said construction was going on, accused No.1 Ananda objected to the same and asserted that the said plot belonged to him. Thereupon, the complainant Ashok stated to accused No.1 that the property was earmarked for 3 criap5005.10 Indira Awas Yojana and asked the accused not to raise objection to the construction of the structure, being carried out by him. It is alleged that after completion of construction of structure, the complainant, his wife, children and parents started residing there. 05. The alleged incident occurred on 7.8.2006, on which day, at about 9.00 a.m., the complainant Ashok had gone to the field of one Damu Jondhale to bring food grains, and while returning back, his brother Machindra met him and told him that accused Nos. 1 to 8 and one Sunil Raghunath Karle had come to the plot on which complainant Ashok had raised residential structure, and they were armed with sticks and they abused the family members of the complainant, by uttering words "tumhi mangte far majle, tumhala lai jaga laagti, tumche pora bahergavi pathva" and they demolished the structure raised by the complainant. Hence, complainant rushed to the spot and found that accused Nos. 1 to 8 and one Sunil were present there, and requested them not to deprive him of his shelter, since rainy season was ensuing. 4 criap5005.10 However, accused Nos. 1 to 8 and Sunil abused the complainant by referring to him as "Mangtya", and accused No. 4 Shankar and accused No. 5 Gorakh assaulted the complainant, by sticks. Accused No.5 Gorakh, accused 6 Navnath and accused No. 8 Somnath assaulted Machindra, by sticks. Further, when the parents of the complainant intervened, the assailants pushed the mother of the complainant. Moreover, father of the complainant fell down and sustained injury. The incident was witnessed by one Sukhdev Dhaktode and his son Ganesh and number of villagers. Accordingly, complainant lodged complaint on 26.8.2006 against the accused persons under CR No.I-274/2006, for offences punishable under Sections 143, 147, 148, 323 read with Section 149, 504 r/w Section 149, 506 r/w Section 149 of IPC, Section 37 (1) (3) r/w Section 135, Bombay Police Act and Section 3(1)(x) of the Scheduled Caste and Scheduled Tribes (Prevention of Atrocities) Act, at Police Station, SDPO, Sangamner. 06. Investigation was carried out and after completion of investigation, charge-sheet was filed against the accused 5 criap5005.10 persons and charge was framed against them at Exh.17 and they pleaded not guilty to the charges levelled against them and claimed to be tried. Accordingly, accused faced trial for the aforesaid offences. 07. The prosecution adduced oral evidence, and also produced documentary evidence. The defence of the accused was that of total denial and they contended that they have been implicated in the case, falsely, and therefore, claimed to be innocent. 08. After assessing and scrutinizing the evidence on record, and considering the rival submissions advanced by the learned counsel for the parties, learned Additional Sessions Judge acquitted the accused persons for the charges levelled against them, and being aggrieved and dissatisfied by the said judgment and order of acquittal, the State has preferred the present appeal, challenging the said acquittal and prayed for quashment thereof. 6 criap5005.10 09. The prosecution has examined in all seven witnesses, namely, PW-1 Ashok Arane complainant PW-2 Ganesh Dhaktode eye witness PW-3 Pandurang Sonwane gramsevak, village Kasare PW-4 Nanasaheb Kankate spot panch (hostile) PW-5 Anna Kankate spot panch (hostile) PW-6 Alka Ashok Arane wife of complainant. PW-7 Vikas Kohok Investigating Officer and S.D.P.O. Sangamner, 10. At the outset, the eye witness, namely, Ganesh Dhaktode (PW-2) turned hostile and did not support the case of the prosecution Moreover, panch witnesses Nanasaheb (PW-4) and Annasaheb (PW-5) also turned hostile and did not support the prosecution, and the said hostility of the panch witnesses gave fatal blow to the case of the prosecution. 11. Moreover, although accused No.4 Shankar and accused No. 5 Gorakh are alleged to have assaulted the complainant by 7 criap5005.10 sticks, no injury certificate of the complainant has been produced on record. Moreover, even though accused No.5 Gorakh, accused No.6 Navnath and accused No. 8 Somnath assaulted Machindra, the brother of the complainant, no injury certificate of Machindra was produced on record. Pertinently, the sticks by which accused allegedly assaulted the complainant and his brother Machindra, were neither recovered from the spot, nor at the instance of the respective accused persons. Moreover, although the allegations are there that the parents of the complainant intervened in the alleged incident and sustained injuries, they were not examined by the prosecution for the reasons best-known to it. 12. Besides that, as regards accusation in respect of offence under Section 37(1)(3) read with Section 135 of the Bombay Police Act, no copy of promulgation has been produced on record. Further, even as regards offence under Section 3(1)(x) of the SC and ST (Prevention of Atrocities) Act, the learned trial court observed that although the prosecution was duty bound to prove and establish the charge under section 3(1)(x) of 8 criap5005.10 the said Act, and also that the accused do not belong either to Scheduled Caste or scheduled Tribe and the complainant belongs to either Scheduled Caste or Scheduled Tribe, the same has not been proved by the prosecution, since no documentary evidence, more particularly, the caste certificates of the accused and the caste certificate of the complainant, have been duly proved by the prosecution. 13. Moreover, it is also submitted by the learned counsel for the Respondents that mere hearing of words addressed on caste, are not sufficient and the prosecution has not proved that the accused, knowingly and intentionally, uttered the said words. Learned counsel for the Respondents further submitted that it is nowhere mentioned that the uttering, allegedly insulting the complainant, was heard by third/independent person. Moreover, as regards other charges in respect of offences under Sections 323, 143, 148 and 149 of IPC, learned counsel for the respondents pointed out that the complainant has filed false complaint in respect of assault to all members of 9 criap5005.10 his family, but there is no evidence to show as to which accused assaulted which member of the complainant's family. 14. As regards offence under Section 324 of the IPC, it is apparent that the panch witnesses turned hostile and thus, the spot panchanama was not proved by the prosecution. It is also submitted that according to the FIR, there were three other injured persons, but none of them was examined by the prosecution. 15. Hence, having the comprehensive view of the matter, the trial court observed that although complainant Ashok (PW-1) and his wife Alka (PW-6) deposed about the alleged incident, independent witness Ganesh (PW-2) has not supported the same and since the parents of the complainant and his brother Machindra and wife of Machindra were not examined by the prosecution, having regard to the background of the case, non examination of the said material witnesses is fatal to the prosecution, and hence, held that it is unsafe to rely upon deposition of PW-1 Ashok and his wife PW-6 Alka, as the 10 criap5005.10 same will not be sufficient to prove the guilt of the accused for the offfences with which they were charged, and therefore, giving benefit of doubt, the trial court acquitted the accused persons, and apparently, there is no flaw in the reasoning adopted by the learned trial court, therefor. 16. In the circumstances, the view adopted by learned trial court, after scrutinizing and assessing the evidence on record, while acquitting the accused persons, is a possible view and same does not appear to be perverse, and reasoning adopted therefor, cannot be faulted with, and hence, the present application, which bears no substance, deserves to be rejected. 17. In the result, the present application, which is sans merits, stands rejected, and leave to file appeal is refused. Record and Proceedings be sent back to the concerned court. pnd/criap-5005.10 (Shrihari P. Davare, J.) 11 criap5005.10