1 rma IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPLICATION NO. 4095 OF 2009 [FOR LEAVE TO FILE APPEAL] IN CRIMINAL APPEAL NO. OF 2009 The State of Maharashtra .. Applicant Vs Tushar Anant Sheramkar & Ors .. Respondents Mrs. P.H. Kanthria, APP for the Applicant - State Mr. B.G. Tangsali for Respondent Nos. 1 to 4 CORAM : SMT. RANJANA DESAI & SMT. V.K. TAHILRAMANI, JJ DATE : 5th APRIL, 2010 P.C.: [PER SMT. V.K. TAHILRAMANI, J] 1. The applicant - State of Maharashtra has preferred this application for leave to file appeal against the judgment and order dated 20.05.2009 passed by the learned 2nd Adhoc Additional Sessions Judge, Raigad-Alibag in Sessions Case No. 124 of 2006. By the said judgment and order, the respondents i.e original accused nos. 1 to 4 came to be acquitted of the offences under section 307, 504, 427 read with section 34 of I.P.C and 3 read with section 25 of the Indian Arms Act. appa4095-09 2 2. The prosecution case briefly stated is that there was previous enmity on account of political rivalry between Pw1 Atmaram Patil and the respondents - accused persons. On 17.02.2006 at about 4.30 p.m., respondents-original accused gave dash to rear portion of motorcycle of the complainant PW1 Atmaram and PW2 Sudhir Patil by means of Maruti Van. At that time, the vehicle was driven by respondent no.1 i.e original accused no. 1 Tushar Sheramkar. Due to dash, PW1 Atmaram and PW2 Sudhir fell down. It is further alleged that the respondents-original accused insulted the complainant PW1 Atmaram and PW2 Sudhir. The vehicle then stopped at distance of about 40 to 50 ft from the complainant Atmaram and PW2 Sudhir. The respondent nos. 1 and 2 got down from the Maruti van, at that time, they were holding swords and respondent nos. 3 and 4 got down from the vehicle holding hockey sticks in their hand. The respondents rushed towards complainant Atmaram and PW2 Sudhir. In order to save their life, Atmaram and Sudhir started running away. The respondents again got back into the vehicle. Thereafter, they accosted the complainant Atmaram by obstructing his way with the vehicle. Respondent no. 3 Yogesh Thakur got down from the van. He was holding hockey stick. Respondent NO.3 Yogesh gave a blow with hockey stick on the back of complainant Atmaram. Thereafter, FIR came to be lodged by appa4095-09 3 Atmaram. 3. Charge under section 307, 504, 427 read with section 34 of IPC and 3 read with section 24 of the Indian Arms Act came to be framed against the accused persons to which they pleaded not guilty and claimed to be tried. Their defence is that of total denial and false implication. 4. We have heard the learned APP for the applicant-State of Maharashtra. We have perused the judgment and order passed by the learned Sessions Judge. After carefully considering the matter, for the reasons stated herein below, we are of the opinion that the judgment and order passed by the learned Sessions Judge does not call for any interference. 5. Both PW1 Atmaram and PW2 Sudhir informed to the police that accused no.1 Tushar gave dash to their motorcycle with their Maruti van bearing No. MH-04/F-49. However, subsequently after making inquiry, it was found that the registration number of the Maruti van of accused No.1 Tushar was not MH-03/F-49. Thus, the number of the vehicle did not tally. Both these witnesses have been cross-examined by the defence at length. Various fatal admissions have been brought on record in their cross-examination which are fatal appa4095-09 4 in nature. Their version further indicates that accused no. 1 Tushar Sheramkar has purchased Maruti van in question prior to one or two years of the incident. The complainant Atmaram Patil is M.A.B.Ed. while witness Sunil Patil has studied upto 10th standard but can very well read English. Both of them knew the accused no. 1 Tushar since his childhood as they are residents of Kurdus. The complainant prior to the alleged incident was knowing the registration number of van of accused no. 1 Tushar. Even then they have erred in disclosing the registration number of Maruti van which allegedly gave dash to their motorcycle. Maruti van No. MH-04/F-49 admittedly does not belongs to accused no.1 Tushar. On the other hand, in the cross-examination of witness Sudhir Patil, it is brought on record by the defence that prior to the incident,he had not seen the number plate of Maruti van of accused Tushar. After reaching to the Police Station, he came to know the registration number of the Maruti van from Sarpanch i.e. the complainant Atmaram Patil. He asked the Sarapanch about the registration number of the Maruti van and accordingly, informed to the police. He further admitted in clear terms that the Sarpanch Atmaram Patil informed the registration number of the Maruti van as MH-04/F-49, accordingly, he informed the same number to the Police. appa4095-09 5 6. What is most pertinent to note is that the case of the prosecution witnesses is that they first went to the Police Station and from there, they were referred to the hospital where they came to be examined and medical certificate came to be issued to them. However, the evidence on record shows that they first went to the hospital, got themselves examined, medical certificates came to be issued and thereafter, they have approached the Police Station. What is most pertinent to note is that the history given by these two witnesses to the Doctor is that of sustaining injuries due to vehicular accident. Hence, it is seen that first in point of time, the history given by both these witnesses is that of vehicular accident. It thus appears that due to previous enmity, the respondents-accused persons have been falsely involved in this case. 7. To give an ocular version of the incident dated 17.02.2006 the prosecution heavily relied upon the testimonies of Atmaram Patil PW1 and Sudhir Patil PW2 who is also one of the victim in the incident. There are several contradictions between the evidence of PW1 Atmaram and PW2 Sudhir. Both these witnesses have been cross-examined by the defence at length. Various fatal admissions are brought on record in their cross-examination which in our opinion are sufficient to impeach their credibility. As per the appa4095-09 6 admissions given by PW2 Sudhir, he saw the accused persons chasing the complainant by standing on the road. None of the accused rushed on him. In the cross-examination, he has admitted that it did not happen that the accused persons rushed on him due to that to save his life, he ran away. Thus, whatever has been projected by this witness that the accused persons attempted to commit their murder is nothing but falsehood. 8. As far as the injuries sustained by PW1 complainant Atmaram and PW2 Sudhir are concerned, the injuries sustained by them are simple in nature. It would be useful to consider the medical evidence brought on record by the prosecution. According to PW8 Dr. Bhagat, on 17.02.2006 at about 5.30 pm, injured Atmaram Patil PW1 came in P.H.C. Chikhali. They gave history of accident due to dash given by van to their motorcycle. Accordingly, he personally examined both these injured simultaneously. According to Dr. Bhagat, on examination of Sudhir Patil, he has noticed in all eight injuries on his person, fresh and simple in nature. Accordingly, he provided him medical treatment and issued the injury certificate (Exh 61). On examination of Atmaram Patil, he has noticed in all 10 injuries on his person fresh and simple in nature. Accordingly, he provided him necessary medical treatment and issued the injury certificate (Exh. appa4095-09 7 62). According to Dr. Bhagat, both the said injured persons were not brought by the police but they suo moto came in the P.H.C. Chikhali. He was not knowing both of them prior to their examination, but as per information given by them, he has recorded their names and address. He has noted down the history as narrated by both the above injured patients to him. He admitted in clear terms that in the M.L.C. register against entries of said patients, he has mentioned that accident due to dash by van to motorcycle. Looking to the evidence on record, we find that conclusion arrived at by the learned Sessions Judge is a reasonable and possible view. 9. The plenitude of power available to the Court hearing an appeal against acquittal is the same as that available to a court hearing an appeal against an order of conviction, but, however, the court hearing an appeal against acquittal, will not interfere solely because a different possible view may arise on the evidence. The Supreme Court in the case of C. Anthony Vs. K.G. Raghavan Nair reported in (2003) 1 SCC 1 has observed that while hearing an appeal against an order of acquittal, if two reasonable conclusions can be reached on the basis of evidence on record, the appellate court should not disturb the finding of the trial court. We have already observed that the view taken by the learned Sessions Judge is a reasonable and possible view. Hence, we are not inclined to appa4095-09 8 interfere in the judgment and order of acquittal. In view of the above, leave to file appeal, is refused. Application is rejected. [SMT. RANJANA DESAI, J.] [SMT. V.K. TAHILRAMANI, J.] appa4095-09