1 Criminal Rev.Appl.No.11 of 2003 with Criminal Appeal No.210 of 2003 IN THE HIGH COURT OF JUDICATURE OF BOMBAY BENCH AT AURANGABAD CRIMINAL REVISION APPLICATION NO.11 OF 2003 Janardhan S/o.Sopanrao Pawar, Age-32 years, Occu-Driver, R/o.Borsar, Tq.Vaijapur, Dist. Aurangabad APPLICANT VERSUS 1. State of Maharashtra 2. Ashok S/o. Janardhan Aware, Age-30 years, Occu-Agriculturist, R/o.Dhondalgaon, Tq.Vaijapur, 3. Janardhan S/o.Manikrao Aware, Age-58 years, Occu-Agriculturist, R/o.Dhondalgaon, Tq.Vaijapur, 4. Jalindhar S/o.Janardhan Aware, Age-25 years, Occu-Agriculturist, R/o.Dhondalgaon, Tq.Vaijapur RESPONDENTS Mr.P.S.Shinde h/f. Mr.S.G.Shinde, learned counsel for the applicant. Mr.S.K.Tambe, learned A.P.P. for respondent State WITH CRIMINAL APPEAL NO.210 OF 2003 The State of Maharashtra, Through Janardhan S/o.Sopanrao Pawar, Age-32 years, Occu-Driver, 2 Criminal Rev.Appl.No.11 of 2003 with Criminal Appeal No.210 of 2003 R/o.Borsar, Tq.Vaijapur, Dist. Aurangabad APPELLANT VERSUS 1. Ashok S/o. Janardhan Aware, Age-30 years, Occu-Agriculturist, 2. Janardhan S/o.Manikrao Aware, Age-58 years, Occu-Agriculturist, 3. Jalindhar S/o.Janardhan Aware, Age-25 years, Occu-Agriculturist, All are R/o.Dhondalgaon, Tq.Vaijapur Dist. Aurangabad RESPONDENTS Mr.S.K.Tambe, learned A.P.P. for appellant/State. Mr.R.V.Gore, learned counsel for respondents no.1 to 3. (CORAM : A.V.POTDAR, J.) DATE : 07/07/2011 ORAL JUDGMENT 1. Learned J.M.F.C.Vaijapur, vide judgment and order dated 28/11/2002, acquitted respondents no.2 to 4 to the criminal revision and respondents no.1 to 3 in Criminal Appeal no.210/2003 from the charge of the offence punishable u/s. 435, 323 r/w. 34 of the IPC. The applicant has questioned the correctness of the judgment of acquittal passed by the learned J.M.F.C. Vaijapur in RCC No. 300/2000. The criminal revision is preferred by original complainant while the criminal appeal is preferred by the State. As the criminal 3 Criminal Rev.Appl.No.11 of 2003 with Criminal Appeal No.210 of 2003 revision so also the State appeal arises out of the judgment and order dated 28/11/2002, passed in RCC No.300/2000, both these matters to be disposed of by way of common judgment. 2. I have heard learned counsel Shri.P.S.Shinde for revision applicant, learned A.P.P. S.K. Tambe for State and Shri.R.V.Gore, learned counsel for respondents no.1 to 3 in criminal appeal. I have also perused the judgment impugned in the revision and in the criminal appeal, so also the R & P received from the Lower Court. 3. It appears that on the complaint filed by the prosecution witness no.1 Janardan Sopan Pawar, an offence came to be registered in Vaijapur Police Station vide CR No.172/2000, as the mini truck/tempo bearing no.MH-20-A-6392 was set on fire by the respondents on 05/11/2000 in front of the house of the respondents and also assaulted the complainant Janardhan and his sister Ranjana. The investigation was carried out by P.W.No.7 Shamrao Manikrao Padme. Following to the registration of an offence, he visited the spot and drew spot panchnama at Exh.29 in presence of panch witnesses. He also recorded statements of certain witnesses. Injured complainant Janardhan and Ranjanabai were referred for medical examination. On completion of investigation, charge sheet was filed against the respondents. Charge was framed by learned J.M.F.C. Vaijapur at Exh.17 against the respondents for an offence 4 Criminal Rev.Appl.No.11 of 2003 with Criminal Appeal No.210 of 2003 punishable u/s. 435, 323 r/w. 34 of the IPC, to which the respondents pleaded not guilty and claimed to be tried. During the trial, to substantiate the charge lavelled against the respondents, prosecution have examined in all 7 witnesses, i.e. complainant Janardhan Sopan Pawar, one Ahmed Khan, the motor mechanic who was present at the time of spot panchnama which was drawn to calculate the damage caused to the mini truck/tempo belongs to the complainant, Kisan Baburao panch witness to the spot panchnama, Ranjana Ashok, sister of the complainant and wife of respondent no.1 Ashok Devichand Tukaram, Pandit Aware, who claimed to be the eye witnesses and the Investigation Officer Shamrao Padme. On appreciation of this evidence, learned Lower Court was pleased to discard this evidence and acquitted all the respondents from all the charges. This finding is impugned in this revision and criminal appeal. 4. With the assistance of learned A.P.P. appearing for the State in the appeal and learned counsel appearing for the original complainant in revision application, perused the evidence before the Trial Court. Perusal of the evidence of P.W.No.1 discloses that on the previous night, telephone message was received at his residence from one Balu Shamrao that the accused have called him on the next day with his tempo/mini truck to collect the crop of onion. In view of this message, in the early morning around 10 to 11 a.m., he had been 5 Criminal Rev.Appl.No.11 of 2003 with Criminal Appeal No.210 of 2003 to the residential premises situated in the agricultural field of the respondents with his tempo. Admittedly, this Balu Pawar is not examined before the Trial Court. On the contrary, this fact stated by the complainant Janardhan is proved as an omission in his cross examination. Apart from it, when he reached at the residence of the accused, he noticed that his sister Ranjana was found crying and sitting outside the house of the respondents. On his inquiry, it was informed by Ranjana that in the previous night so also in the early morning, she was assaulted by her husband/respondent no.1 Ashok. At this juncture, I may take a note of the fact that Ranjana was examined by the prosecution as P.W.No.4 Even though, she has attempted to give the details of the episode dated 05/11/2000, but in her cross examination, so also in the cross examination of the complainant Janardhan, history of the previous litigation between Ranjana and respondent Ashok was brought on record, which was of matrimonial dispute. Apart from it, vital admission was given by Ranjana in her cross examination that about 1½ year, she was residing with her parents and so also when she gave evidence on oath before the Court about 5-6 years prior to that date, she was residing at her matrimonial house. Record shows that evidence of Ranjana was recorded before the Court on 07/05/2002. On arithmetical calculation or otherwise also, at the relevant time, presence of Ranjana at the spot of incident, appears to be doubtful because of the vital admission given by her in her cross examination. In view of 6 Criminal Rev.Appl.No.11 of 2003 with Criminal Appeal No.210 of 2003 this, her evidence that she was assaulted by respondent Ashok and during that process, remaining respondents also assisted him, to prove the charge for an offence punishable u/s. 323 r/w. 34 of the IPC, the evidence of this witness was discarded. To prove the charge for an offence punishable u/s. 435 r/w. 34, evidence given by complainant Janardhan is important. He has stated that after he inquired with his sister Ranjana P.W.No.4 about the reason why she is crying, at that time, respondent Ashok tried to assault him with knife in his hand and on seeing the knife in the hands of respondent Ashok, complainant Janardhan ran away from the spot. As against this, evidence given by P.W.No.4 that respondent no.2 tried to assault complainant Janardhan with fist and kick blows while respondents no.1 to 3 tried to assault complainant Janardhan with the sticks thus there is variance in the evidence of complainant Janardhan and the alleged eye witness Ranjana and on this count, the evidence about the assault on the complainant also discarded by the learned Lower Court. It is further deposed by Janardhan that at that time, respondent Ashok poured kerosene on the tempo and set it on fire. In his evidence, prosecution tried to prove FIR at Exh.34. Perusal of FIR at Exh.34 is totally silent on the point that complainant Janardhan had seen Ashok setting the tempo on fire. On this count, prosecution intends to rely on the evidence given by P.W.No.4 Ranjana, P.W.No.5 Devichand and P.W.No.6 Pandit. Evidence of Ranjana P.W.No.4 discloses that after P.W.No.1 Janardhan ran away 7 Criminal Rev.Appl.No.11 of 2003 with Criminal Appeal No.210 of 2003 from the spot, respondent Ashok poured kerosene on the tempo and set it on fire. According to her, this tempo was parked at the distance of 7-8 ft from the residence of these respondents, who were arrayed as an accused before the Trial Court. At the same time, in her cross examination, she has admitted that the land in which the respondents are residing is an irrigated land and there is standing sugar-cane crop at the height of 7-8 ft. There is pathway reaching to their residence of which width is 2 ft. Considering this aspect, it is totally improbable that the tempo or mini truck, of which width is about 8-9 ft, can cross the 2ft pathway and will reach to the residence of respondents. At the same time, she has further admitted in her cross examination that on the date of incident, in the evening, police came at the spot and at that time she disclosed that as to how the incident occurred. At that time, witness Devichand and witness Pandit for the first time came at the spot. As against this, in the evidence given by witness Devichand, he has stated that he was present at the spot when the vehicle was set on fire by respondent Ashok. The evidence given by P.W.No.6 Pandit is again contrary to this evidence that the vehicle was set on fire by respondent Ashok after ½ hour after complainant Janardhan ran away from the spot. According to P.W.No.5 Devichand, when respondent Ashok set the vehicle on fire, the complainant was also present there and after ½ hour, complainant ran away from the spot. The fact is clear that the evidence given by P.W.No.5 and P.W.No.6 is 8 Criminal Rev.Appl.No.11 of 2003 with Criminal Appeal No.210 of 2003 not supported by the evidence of P.W.No.4, but it is contradictory to each other. 5. Evidence given by P.W.No.4 to P.W.No.6 is falsified by the circumstance i.e. the spot panchnama. In his cross examination, P.W.No.1 complainant Janardhan admitted in clear terms that the residence of the accused and the spot of incident, there is distance of about 1 km. According to P.W.No.4 Ranjana, the vehicle was parked at the distance of about 7 ft from the residence of respondent no.1 to respondent no.3. I have already expressed the view that in view of the vital admissions given by Ranjana, her presence at the spot is doubtful, as according to her, she was residing with her parents for about 5-6 years prior to the date on which she has given the evidence on oath. According to P.W.No.5 and P.W.No.6, the vehicle was parked at the distance of about 15 ft. from the residence of respondents no.1 to 3. According to P.W.No.4, P.W.No.5 and P.W.No.6, the place of incident is surrounded by huts. On minute perusal of Exh.29, the spot panchnama which is in real sense not proved in the evidence of P.W.No.3 panch witness, but the picture as was projected before the Court by the Investigation Officer demonstrates that tempo was found parked and found in burnt condition in the river bed and it is at the distance of about ½ km from the residence of respondents no.1 to 3. The fact is clear that while guessing the distance, there may be a difference of some ft here and there, but not a difference of miles 9 Criminal Rev.Appl.No.11 of 2003 with Criminal Appeal No.210 of 2003 together. Thus the spot panchnama clearly demonstrates that the vehicle was not found parked, where it was found in burnt condition at the near distance from the residence of these respondents. Considering this entire evidence, learned Lower Court pleased to discard the entire evidence. In addition to the evidence which I have discussed earlier, in the last line, a vital and bold admission was given by the Investigation Officer that during the investigation, the can containing kerosene was neither recovered nor seized by him, which falsify the entire story of the prosecution that kerosene was poured on the tempo and then it was set on fire. Considering the evidence on record, discussed by the learned Lower Court, the view taken by the learned Lower Court appears to be a provable view. On perusal of the impugned judgment in this revision, so also in the criminal appeal, I do not find any perversity in the finding recorded by the learned Lower Court, neither learned A.P.P. appearing for State is able to point out any perversity while recording the finding of acquittal by the learned Lower Court. 6. It is a settled principle of Law that unless the finding recorded by the Lower Court is proved to be a perverse finding and the view taken by the Courts below, is on the face of record seems to be an improbable view, then only in such exceptional cases, interference is required at the hands of Appellate Court while hearing the appeal against acquittal. As I have already held that the view taken by the 10 Criminal Rev.Appl.No.11 of 2003 with Criminal Appeal No.210 of 2003 lower court is a probable view and I do not find any perversity in the finding recorded by the learned Lower Court, I do not find any merit in the criminal revision, so also in the criminal appeal. In substance, criminal revision as well as criminal appeal, both stand dismissed by confirming the judgment of acquittal recorded by the Lower Court. 7. Criminal revision and criminal appeal stand disposed of accordingly. Bail bonds of respondents no.1 to 4 in Criminal Appeal No.210/2003 stand cancelled. (A.V.POTDAR, J.) khs/JULY 2011/cri.rev.11-03