Cr.Appln/3931/2010 1 IN THE HIGH COURT OF JUDICATURE OF BOMBAY BENCH AT AURANGABAD CRIMINAL APPLICATION NO.3931 OF 2010 The State of Maharashtra Through Police Station Mantha, Tq. Mantha, Dist. Jalna. ..Applicant VERSUS 1.Gautam Pandurang Waghmare Age 22 yeas, Occ. Agriculture 2. Babu Nivrutti Waghmare Age 30 yeas, Occ. Agriculture 3. Anna Trimbak Waghmare Age 30 yeas, Occ. Agriculture 4. Raju Uttam Waghmare Age 20 yeas, Occ. Agriculture 5. Ramprasad Uttam Waghmare Age 25 yeas, Occ. Agriculture 6. Bharat Lahu Waghmare Age 19 yeas, Occ. Agriculture 7. Sushila Atmaram Waghmare Age 40 yeas, Occ. Agriculture 8. Mandubai Uttam Waghmare Age 40 yeas, Occ. Agriculture 9. Atmaram Trimbak Waghmare Age 38 yeas, Occ. Agriculture 10. Bhagwan Sudam Waghmare Age 40 yeas, Occ. Agriculture 11. Shamsunder Bhagwan Waghmare Age 19 yeas, Occ. Agriculture 12. Shivaji Lahu Waghmare Age 20 yeas, Occ. Agriculture Cr.Appln/3931/2010 2 13. Dilip Atmaram Waghmare Age 20 yeas, Occ. Agriculture 14. Subhash Trimbak Waghmare Age 35 yeas, Occ. Agriculture 15. Lahu Trimbak Waghmare Age 40 yeas, Occ. Agriculture 16. Suman Lahu Waghmare Age 35 yeas, Occ. Agriculture 17. Nivrutti Kadaji Waghmare Age 65 yeas, Occ. Agriculture 18. Pandurang Sonaji Waghmare Age 65 yeas, Occ. Agriculture 19. Roobai Pandurang Waghmare Age 35 yeas, Occ. Agriculture All residents of village Shivangiri,Taluka Mantha, District Jalna. ..Respondents ... Shri N.R.Shaikh, APP for Applicant ... CORAM : A.H.JOSHI & A.R.JOSHI, JJ. Dated : October 17, 2011 ORAL JUDGMENT : (PER A.R.JOSHI, J.):- 1. Heard submissions on the present application for leave to appeal preferred by the State of Maharashtra, challenging the judgment and order of acquittal dated 25.5.2010, passed in Sessions Case No. 24 of 2009 by the learned Ad-hoc Additional Sessions Judge - I, Jalna. Cr.Appln/3931/2010 3 2. By the impugned judgment and order, all the nineteen accused were acquitted of the charges levelled against them for the offences of rioting with deadly weapons, forming an unlawful assembly so also offences punishable under Sections 307, 324 and 506 of the Indian Penal Code ("IPC" for brevity") and Section 135 of the Bombay Police Act. 3. We have gone through the reasoning given by the learned Sessions Judge, while dealing with the case of the prosecution, which was put forth before the trial Court by examining eight witnesses. In order to appreciate the submissions in proper perspective at the stage of grant or refusal of the leave to file an appeal against the acquittal, the case of the prosecution and import of the substantive evidence of the prosecution witnesses vis-a-vis the involvement of the accused, is narrated as under:- 4. There were two rival groups in the village Shivangiri, Taluka Mantha, District Jalna. On various occasions, there were fights amongst the members of the said groups. One of such fights occurred on the evening of 27.8.2009. The rival gang members were in Cr.Appln/3931/2010 4 drunken state and there was assault on the members of both the gangs and various weapons, such as knives, axes, sticks etc. were used by the rival parties against each others. Rival gang members were arrested. Certain discoveries were made from the members of the gang, who are present accused persons. In the present matter, complainant Arjun Khade received severe injuries by means of axe, knife and sticks. Some other gang members were also assaulted and received injuries. Cross complaints came to be filed. After completion of investigation of respective cases, charge sheets were filed and present matter was taken before the learned Sessions Judge, which ended in acquittal of the accused persons. 5. We have observed that the following were the mitigating circumstances, which weighed with the learned Sessions Judge doubting the case of prosecution (1) Though eight witnesses were examined by the prosecution, alleged eye witnesses were the interested party members and no independent witnesses were examined, though available. (2) Evidence of PW 3 Arjun, who is the Cr.Appln/3931/2010 5 complainant, is unreliable, inasmuch as he did not support the contents of his complaint and while giving substantive evidence before the Court, restricted to depose only against the accused persons. Moreover, according to him, he fell unconscious and regained consciousness in Mantha Rural Hospital and as such, did not mention regarding overt acts of other co-accused. He referred to accused Pandurang Waghmare and Gautam Waghmare, using deadly weapons - axe and knife. In the substantive evidence, he did not mention that the said named accused assaulted any other persons. Thus, he has materially deviated from the contents of his complaint. (3) PW 4 Babasaheb rendered himself unreliable, as he has changed the prosecution story and also changed the spot of offence. He deviated from his statement to the police, inasmuch as, according to him, his aunt Godavaribai was assaulted by Pandurang Waghmare and Gautam Waghmare. (4) PW 2 Dilip Waghmare did not support the version of the complainant and as such rendered himself unreliable, so far as the actual incident of assault was concerned. (5) PW 5 Sampat Waghmare did not stick to his statement to the police, inasmuch as in the substantive evidence, he mentioned some Cr.Appln/3931/2010 6 other place as scene of offence and as such changed the spot and rendered himself unreliable. More so, he remained silent on the crucial aspect of assault on the complainant by Pandurang Waghmare by using axe as the weapon. (6) PW 7 Balasaheb Rathod, a recovery panch, became untrustworthy, inasmuch as he did not specifically mention as to which accused gave a memorandum statement and produced which of the weapons, though he mentioned regrading memorandum statements given by accused Gautam Waghmare, Pandurang Waghmare and other two accused persons. (7) Evidence of Medical Officer PW 8 was not supporting the case of prosecution, inasmuch as, medical certificates of other injureds were not produced before the Court. Moreover, original M.L.C. Register was not brought during the trial and only injury certificate of complainant Arjun was produced, that also during the trial and not any time prior to the recording of his evidence. (8) There were counter cases lodged out of the same incident and thus the story as narrated by the prosecution was unbelievable and doubtful and thus rendered the defence of the accused probable on preponderance of probabilities. Cr.Appln/3931/2010 7 6. We have observed that analysing the substantive evidence of prosecution witnesses and mainly noticing the mitigating circumstances as listed above, the learned Sessions Judge came to the conclusion as to failure of the prosecution to establish the guilt of the accused persons. As such the trial ended in acquittal giving benefit of doubt to all the accused. 7. Considering the reasoning given by the trial Court and considering the substantive evidence of the prosecution witnesses, in our view, it is not a case, in which, we can come to a different conclusion than that arrived at by the trial Court. There is no merit in the appeal and there is nothing on record to allow the application seeking leave to prefer an appeal. 8. In the result, both, the application for leave to file appeal and the appeal, stand dismissed. (A.R.JOSHI,J.) (A.H.JOSHI,J.) ... akl