1 rma IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPLICATION NO. 3236 OF 2009 [FOR LEAVE TO FILE APPEAL] IN CRIMINAL APPEAL NO. OF 2009 The State of Maharashtra .. Applicant Vs Hanumant Vasant Ghuge & 9 Ors .. Respondents Mr. H.J. Dedhia, APP for the Applicant - State CORAM : SMT. RANJANA DESAI & SMT. V.K. TAHILRAMANI, JJ DATE : 1st APRIL, 2010 P.C.: [PER SMT. V.K. TAHILRAMANI, J] 1. The applicant - State of Maharashtra has filed this application for leave to file appeal against the judgment and order dated 21.02.2009 passed by the learned Adhoc Additional Sessions Judge, Solapur in Sessions Case No. 21 of 2005. By the said judgment and order, the respondents i.e original accused nos. 1 to 10 came to be acquitted of the offences under sections 326, 324, 323, 452, 504 read with 149 and under section 504 read with 149 of IPC and under section 3(1) (V) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act. 2. The prosecution case briefly stated is that there was appa3236­09 2 political rivalry between the complainant and respondents - original accused nos. 1 to 10. The case of the complainant is that on 30.05.2005 at about 8.30 pm, all the respondents - accused persons entered in the house of the complainant with deadly weapons like wooden stump and iron rod etc and they assaulted PW1 Haridas, PW2 Ranubai , PW3 Mahaveer and one Ramhari. At that time, they insulted the witnesses in filthy language. 3. 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. We have also perused the evidence which was produced by the learned APP. 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. 4. As far as the evidence under section 326 read with 149 of IPC is concerned, it is the case of the prosecution that Ramhari was assaulted by means of deadly weapons which caused grievous injury to Ramhari, hence section 326 was attracted. However, this witness has not been examined. Nothing has been brought on record regarding injuries to Ramhari. In these circumstances, an offence under section appa3236­09 3 326 read with 149 of IPC could not be said to be proved against the respondents. 5. As far as other witnesses are concerned, all of them have sustained simple injury. There are three injured witnesses i.e PW1 Haridas, PW2 Ranubai and PW3 Mahavir. 6. PW2 Ranubai has stated that she had gone to her agricultural land. She heard commotion, hence she rushed home. She saw her husband and son were lying in front of her house in injured condition. She has stated that accused no. 3 gave blow of stick on her right hand and accused nos. 8, 9 and 10 pulled her hair, pushed her on the ground and assaulted her. However, during cross-examination of this witness, it has been brought on record that her version that when she rushed home, at that time, she saw that her husband and her son were lying in an injured condition in the court- yard of her house is an omission. She has denied that when she along with her family members were present inside the house, at that time, she heard somebody trying to open tin roof of the house. However, it is pertinent to note that PW1 Haridas has admitted in his cross-examination that when he bolted the house from inside, he, his wife and daughter-in- law were inside the house and at that time, they heard noise of one tin sheet from the roof of his house being removed. appa3236­09 4 Thus,the evidence of PW2 Ranubai shows that she rushed to the spot from her agricultural land whereas the evidence of PW1 Haridas shows that she was inside the house when the incident occurred. 7. The evidence of PW1 Haridas is that he, his wife and his daughter-in-law were in the house, at that time, accused nos. 2 to 6 came with iron rod and wooden log towards his house. On seeing them, he was frightened, hence he, his son and daughter-in-law rushed into their house. However, the respondents-accused persons broke the latch of his house, pulled them outside their house and assaulted him and his son by means of wooden log and iron rod. However, in the cross- examination of this witness, it has been brought on record that on the date of incident at about midnight, he along with other relatives were enjoying liquor party and dinner. Some thieves observed this fact and at midnight, they attacked his house. Looking to the long standing political enmity between two parties and considering the admissions given by PW1 Haridas, the possibility cannot be ruled out that at midnight some dacoits tried to commit dacoity in the house of PW1 and assaulted PW1 and his relatives and taking advantage of this situation PW1 filed complaint against all the respondents-accused persons. Considering the admissions given by this witness, it appears that due to political appa3236­09 5 rivalry between two parties in the village, he has roped in all the respondents-accused persons in this case by way of an afterthought. In view of the admissions given by this witness, his deposition is not found to be reliable. 8. Looking to the admissions given by PW1 that he and his relatives had enjoyed liquor party at midnight when some dacoits tried to remove one tin sheet of the roof of his house, therefore PW1 Haridas himself, his wife, daughter-in- law and son came out of the house when they came to be assaulted, we find that the evidence of this witness as well as other witnesses implicating the accused persons cannot be safely relied upon. 9. In addition to the above, as far as PW4 Mukund Devhare is concerned, he is the son of PW1 Haridas. He has stated that all the respondents-accused persons started assaulting him and his family members by iron rod and wooden rod. However, in cross-examination, this averment in his examination-in-chief was found to be an improvement. It has been brought on record that his version that all the respondents-accused persons started assaulting him and his family members by iron rod and wooden rod is an omission. So also, his further version that respondent no. 5 assaulted him on his head by means of wooden rod on his head is also appa3236­09 6 found to be an omission. Further, version of this witness that when his mother rushed to the spot and tried to intervene, she was also assaulted by means of wooden rod is also an omission. In view of all these omissions, it would be unsafe to rely on his evidence. 10. According to the prosecution, PW6 Tanaji is also an eye witness. Tanaji is a political personality and is from the rival political group. In view of this fact, his evidence requires to be scrutinized very carefully and cautiously. On carefully going through the evidence of this witness, it does not appear that he was an eye witness to the incident. It is pertinent to note that this witness has not specifically stated as to which accused had assaulted PW1 Haridas, PW2 Ranubai or PW3 Mahaveer. He has stated that he had seen some sticks were lying in the court-yard of the house of the complainant and subsequently, he has stated that he had convinced all the respondents-accused persons and the complainant and sent them to their house. If really this witness had seen the accused persons while assaulting the prosecution witnesses, then question of him saying that he saw sticks lying in front of court-yard of the house of the complainant does not arise. Considering this aspect, it appears that, he was not an eye witness to the incident. appa3236­09 7 11. As far as the offence under section section 3(1)(V) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act is concerned, from the evidence of PW7 I.O. Dy.S.P. Purushottam Karad, it appears that the Investigating Officer carried out investigation without taking permission from the higher authority and therefore the investigation appears to be faulty. The incident has taken place on 03.05.2005 and according to the prosecution, the Investigating Officer received letter to investigate the matter on 04.05.2005. However, the letter which was received from the Superintendent of Police, Rural has not been brought on record by the prosecution. Thus, the learned Sessions Judge has rightly observed that the prosecution has not proved that the investigating officer had been granted permission to investigate the matter under section 3(1)(V) of the Scheduled Caste and Scheduled Tribe (Prevention of Atrocities) Act. 12. Looking to the entire evidence on record and specially the admissions given by the complainant Haridas that on the night of the incident, he along with other relatives were enjoying liquor party and dinner in the house. At that time, some thieves observed this fact and at midnight, they tried to enter his house by removing tin sheet. Due to this, the complainant and other persons came out of the house, at that appa3236­09 8 time, these thieves assaulted him and his family members. The defence taken by the accused persons that due to political rivalry arising out of Grampanchayat election, they have been falsely implicated, appears to be probable and reasonable. In view of the admissions given by the witnesses and various omissions and contradictions which have been proved, we find that the order of acquittal by the learned Sessions Judge is a reasonable and possible view. 13. 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 interfere in the judgment and order of acquittal. In view appa3236­09 9 of the above, application for leave to file appeal, is rejected. [SMT. RANJANA DESAI, J.] [SMT. V.K. TAHILRAMANI, J.] appa3236­09