1 CR.APPEAL NO.358 OF 1998 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD UNREPORTED CRIMINAL APPEAL NO. 358 of 1998 (Arvind s/o Keshavrao Nalge Vs. The State) Date of decision: 25/1/2011 For approval and signature HON'BLE MR. JUSTICE K.U.CHANDIWAL 1. Whether the Reporters of Local Papers Yes may be allowed to see the Judgment ? 2. To be referred to the Reporter or not ? No 3. Whether Their Lordships wish to see No. the fair copy of the Judgment ? 4. Whether this case involves a substantial? No. question of law as to the interpretation of the Constitution of India, 1950, or any order made thereunder ? 5. Whether it is to be circulated to the No. Civil Judges ? 6. Whether the case involves an important No question of law and whether a copy of the Order should be sent to Bombay, Goa and Nagpur Office ? (A.G.Paralikar) P.S. /agp/kucj/24-1/358-98cr.a 2 CR.APPEAL NO.358 OF 1998 IN THE HIGH COURT OF JUDICATURE OF BOMBAY BENCH AT AURANGABAD CRIMINAL APPEAL NO.358 OF 1998 Arvind s/o Keshavrao Nalge, Aged 38 years, Occu: Agril., R/o Shirli, Tq. Basmat, District: Parbhani. ...APPELLANT (ORI.ACCUSED NO.1) VERSUS The State of Maharashtra. ...RESPONDENTS ... Mr.S.G.Sangale, Adv., for the appellant. Mr. V.H.Dighe, APP for State. ... CORAM: K.U.CHANDIWAL, J. DATE:25/1/2011 *** ORAL JUDGMENT : 1. Heard. By this Criminal Appeal conviction recorded for an offense under Section 323 of IPC imposing imprisonment till rising of the Court and to pay fine of Rs.600/-; with default clause, recorded by learned Special Judge, Parbhani, dt.5.10.1998 is questioned. The appeal is admitted on 2.12.2000. The accused is 3 CR.APPEAL NO.358 OF 1998 on bail. 2. The accused/appellant was prosecuted for the allegation that the accused with three others in furtherance of their common intention assaulted or caused injuries to the complainant Deorao and insulted him, provoked him intentionally in public gaze referring to his caste. 3. The complainant Deorao is from nomadic Tribe, residing at village Sirli, Basmat Taluka. On 25.3.1994, while he was at the flour mill of Nagorao (PW 3), the accused barged; accused no.1 (appellant) questioned him as to why a complaint was lodged and he assaulted complainant with a stick while the others also assaulted him by stones due to which the complainant suffered bleeding injuries at his head and other parts of the body. Intervention by Nagorao, his wife and others could save life of the complainant. The complainant was referred to Primary Health Centre, Kurunda, and an offense under Crime No. 31/1994, was registered against the accused/applicant and three others. Charge was explained to the accused to which the accused/appellant and others pleaded not guilty and claimed to be tried. The defense of the accused/appellant is of total denial. 4 CR.APPEAL NO.358 OF 1998 4. On evaluation of the evidence of six witnesses i.e. PW No.1 Deorao, the complainant, PW No.2 Shankar, PW No.3 Nagorao, the alleged eye witnesses, PW No.4 Dr.Manikrao, the Medical Officer, PW No.5 Gyanba, a panch, PW No.6 PSI Sayyad, the learned Judge recorded the above conviction. 5. The alleged two eye witnesses and also the Panch did not support the prosecution. It is a matter of record, the complainant suffered ten injuries. It was suggested, since at the material time, he was drunk, fell on ground and had the sufferance of the injuries, however, this was refuted in the evidence of PW No.4, the Medical Officer and also of the complainant Deorao which establish that such injuries could not be result of coming in contact to floor surface. Ten injuries apparently could not be by multiple fall. The learned Special Judge rightly did not believe the sole version of the complainant about infraction of provisions of Section 3(1)(x) of SC and ST Act as it is not so demonstrated by the complainant, least the two eye witnesses. The overall survey of the evidence illustrated that there was no common intention carried by all the accused to intentionally insult or humiliate the complainant Deorao, a member of Scheduled tribe. 5 CR.APPEAL NO.358 OF 1998 6. The evidence of Deorao, though not supported by two eye witnesses, would not be branding it to be unbelievable. Since his evidence matched in all particulars to the certificate issued by PW No.4, it is difficult to conceive, that no event has taken place, and that on false accusation, the appellant is trapped and smacked. It is a matter of record, Deorao was also a member of Gram Panchayat in the village while the accused/applicant was Sarpanch for the same period. In 1993, no confidence was moved against accused/appellant Arvind. The parties were on cross terms due to lodging of report even by the accused/appellant against the son of Deorao. In this situation of the matter, the assault by the accused, as narrated by Deorao, near the flour mill of Nagorao, cannot be doubted. There is no evidence of alibi as propagated by the accused/appellant. The observation of the learned Judge, based on the evidence, referred here-in-above, does not call for any interference. 7. In the result, the conviction recorded for an offense under Section 323 of I.P.C., in Special Case No.96/1995, dt.5.10.1998, is confirmed. Appeal dismissed. (K.U.CHANDIWAL) JUDGE ... agp/358-98cr.a