Bombay High Court
The State Of Maharashtra vs Ashok Damu Suryawanshi And Ors on 4 January, 2022
Author: Prakash D. Naik
Bench: Prakash D. Naik
rpa 1/15 236 apeal 1210 2007.doc
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO.1210 OF 2007
State of Maharashtra .. Appellant
Versus
1) Ashok Damu Suryawanshi;
2) Balu alias Raghunath Damu; and
3) Sumanbai Ashok Suryawanshi .. Respondents
......
Mr.S.H. Yadav, APP for the Appellant-State.
......
CORAM : PRAKASH D. NAIK, J.
DATED : JANUARY 4, 2022.
JUDGMENT :
The State of Maharashtra has preferred this Appeal under Section 378(3) of Code of Criminal procedure, challenging the judgment and order dated 9th September, 2004, passed by Judicial Magistrate First Class, Satana, in R.C.C.No.140 of 2000. 2 The prosecution case is as under:
Digitally signed by RAJESHRI
RAJESHRI PRAKASH AHER On 8th July, 2000, at about 06:00 a.m., the accused PRAKASH Date:
AHER 2022.01.11
17:13:25
+0530
no.1 had questioned the complainant for lodging complaint at the rpa 2/15 236 apeal 1210 2007.doc police station. Accused nos.2 and 3 caught hold of complainant, whereas, accused no.1 assaulted her with stick on her hand causing fracture to hand. The complainant visited Jaikheda police station and lodged the complaint. Crime was registered vide C.R.No.92 of 2000. Investigation was completed and charge- sheet was fled.
3 Charge was framed against the accused vide order dated 16th April, 2001, under Sections 325 read with 34, 323 read with 34 and 504 read with 34 of Indian Penal Code ("IPC", for short).
4 The prosecution has examined 9 witnesses. P.W.1 Vilas Tukaram Choudhary is the panch witness for spot panchanama. P.W.2 Sadashiv Pandurang Sonawane is eye witness. P.W.3 Kamalabai Suryawanshi is the complainant, P.W.4 Bansilal Battase is the eye witness to the incident. P.W.5 Bhika Mahadu Lokhande is brother of injured. P.W.6 Kailas Pandurang Ahire is the eye witness, P.W.7 Dr.Satish Dayaram Suryawanshi is the medical oficer who examined injured P.W.3, P.W.8 Mothabhau Pundlik Hyalij is the PSO on duty at the police station, P.W.9 Datta Tiwari, is the eye witness.
rpa 3/15 236 apeal 1210 2007.doc 5 After recording evidence of witnesses, the statement
of accused was recorded under Section 313 of Cr.P.C. The trial Court by judgment and order dated 9th September, 2004, acquitted all the accused for the ofences punishable under Sections 325, 323 and 504 read with 34 of IPC.
6 The impugned judgment of acquittal is under challenge in this Appeal by the State of Maharashtra. 7 Learned APP submitted that the judgment of trial Court is contrary to the evidence on record. The evidence has not been properly appreciated. The Court has committed error in believing that in the complaint Exhibit-21, it is nowhere stated that the accused no.1 had assaulted the complainant with iron bar on 21st July, 2000. The trail Court had erred in observing that in respect of the evidence dated 8th August, 2000, there is nothing on record to show that any complaint was registered on 8 th August, 2000. The complainant is a illiterate lady and does not know to whom she narrated the incident of 8th August, 2000. Medical yadi shows the date as 8 th August, 2000. The medical oficer has deposed that on the basis of X-rray report, he gave the fnal medical certifcate of fracture. The medical oficer has stated rpa 4/15 236 apeal 1210 2007.doc that on the basis of X-rray report, he issued medical certifcate on 18th August, 2000, and there is evidence to show that the complainant was admitted to 8th August, 2000 to 18th August, 2000. There is no reason to doubt the evidence of eye witnesses. Complainant is the wife of accused no.1. Her evidence ought not to be disbelieved by the trial Court. All charges were proved against the accused. The order of the trial Court is perverse. Trial Court has failed to appreciate evidence.
8 P.W.1Vilas Choudhary is the panch witness for spot panchanama. He has not supported prosecution case. The spot panchanama mentions that stick used for assaulting injured was recovered from the spot. He has been declared hostile. P.W.2 Sadashiv Sonwane is the eye witness to the incident. He was declared hostile.
9 P.W.3 Kamalabai Suryawanshi is the complainant. She stated that on 7th July, 2000, at 7:30 p.m., she was at Mulher. She was sitting on the platform of house. Accused no.1 came there and told her not to live in his house. He abused her. He assaulted her with iron bar. She went to police station at Mulher and lodged complaint against accused. She stayed in the house of her rpa 5/15 236 apeal 1210 2007.doc relative Sadashiv Sonwane (P.W.2). On the next day, she went to her house. Door was locked. She sat on the platform. Accused came there and questioned her as to why she had lodged complaint at police station. She claimed right to stay in the house. Accused nos.1 and 2 caught her. Accused no.1 assaulted her by stick on right hand which resulted in fracture. She again went to police station and fled complaint. Police referred her to Taharabad Primary Health Centre. Due to injury, she was referred to Civil Hospital, Nashik. She was admitted for eight days on 18 th July, 2000. She received medical certifcate. She gave it to Mulher police station. Police recorded her supplementary statement on 18th July, 2000. The accused had also assaulted her on her legs, back etc. They are not present in Court and she can identify them. She identifed the stick by which accused no.1 assaulted her. In cross-examination she stated that she is residing at village Kharde since last one and half year. She has fled suit for recovery of Rs.1,20,000/-r, as maintenance from accused. The suit was fled in July 2000 when she was assaulted and driven out by the accused. Child was born to her from accused no.1. She has also fled a suit for partition in 2001 at Satara Court. Her marriage with accused no.1 was performed in 1972. After marriage for 8 to 10 years she was given good treatment, and, rpa 6/15 236 apeal 1210 2007.doc thereafter she was ill treated by accused no.1. She did not fle any complaint against accused no.1 from 1982 to 2000. All the agricultural land and house is in the name of accused no.1. She was insisting that accused should give land and property in her name, but, he refused to do so. On that count there is dispute between them. The accused no.1 has not transferred any land in her name. He maintained relationship with another woman. She had fled complaint under Section 494 of IPC against husband. Accused nos.1 and 2 are residing separately. She fled complaint on 7th July, 2000 at Mulher outpost at 7:30 p.m. Police told her to fle complaint in the Court. She has not stated to the police that on 7th July, 2000, accused no.1 had assaulted her with iron rod. On 8th July, 2000, when she went to the house of accused, she was alone. She fled a complaint in writing to Mulher police station. She do not know whether police accepted it. Copy of complaint dated 8th July, 2000 was not given to her by police. She went to Taharbad Primary Health Centre at 08:00 a.m. on 8 th July, 2000. Police issued medical certifcate. There were stick marks on person and fracture to her hand. She was admitted in the hospital. Doctor gave her certifcate. She did not go to house of accused no.1 thereafter. She fled civil suit and criminal case against accused no.1.
rpa 7/15 236 apeal 1210 2007.doc 10 P.W.4 Bansilal Battise has stated that accused no.1
had assaulted complainant by stick on hand and other parts of body. Accused no.3 caught complainant. Accused no.2 assaulted complainant. He identifed accused no.1. He can identify other accused. They are not present in the Court. His statement was recorded by police on 19th July, 2000. In the cross-examination he stated that complainant is cousin of his mother. He visits their house. Since last 8 to 10 years, there were quarrels between accused no.1 and complainant. He was present at village Mulher on 7th July, 2000. He do not know whether any incident took place on 7th July, 2000. He know Sadashiv Pandurang. He do not know about the incident dated 7th July, 2000. The incident was going on at the back side portion of wada. There were 10 to 12 persons. P.W. 5 Bhika Lokhandehas deposed that he is the brother of the injured. He took her to Mulher to send her to her husband's house. It was about 07:15 a..m. Accused no.1 assaulted P.W.3 by stick. Accused no.3 caught P.W.3 Kamalabai. She sustained injury to her right hand. Villagers intervened. He went to Taharabad PHC for treatment of P.W.3.They were advised to go to Nashik for treatment of fracture. In the cross-examination he stated that there was no complaint at the police station about incident dated 7th July, 2000. P.W.6 Kailas Ahire is the eye witness to the incident.
rpa 8/15 236 apeal 1210 2007.doc He did not support the prosecution case. He was declared hostile. P.W.7 Dr.Satish Dayaram Suryawanshi is the medical oficer. He has referred to injuries sufered by P.W.3. According to him, injury no.1 is grievous. Other were simple injuries. Patient was referred to X-rray at Civil Hospital, Nashik. After receiving X-rray report, they issued medical certifcate. all injuries may be possible by hard and blunt object. Jaikheda police station had refereed the injured for medical treatment. In the certifcate Exhibit-39 and the register it is not mentioned that the injured was referred by police. History of injuries might be mentioned in the certifcate. Firstly, the date on the register was mentioned as 8th August, 2000, but, later on it is changed to 8th July, 2000. In Exhibit-39, the date was changed to 8th July in place of 8th August. P.W.8 is ASI attached to Mulher outpost. He registered the occurrence and referred the complainant to medical examination. Medical certifcates was fled by complainant on 18 th July, 2000 referring to grievous injury to her. Supplementary statement of complainant was recorded. Crime was registered at Jaikheda police station under Sections 323, 325 and 504 read with 34 of IPC. Exhibit-21 is N.C. registered by him. He recovered the stick from the spot. He admitted that the complaint was lodged in respect to the incident dated 7 th July, 2000. He recorded the rpa 9/15 236 apeal 1210 2007.doc complaint on the same day. On the said complaint, he registered N.C. complaint and intimated about it to the complainant. The date was wrongly mentioned on Exhibit-51 as 8 th July, 2000. P.W.9 Datta Tiwari is the eye witness. He stated that he has not seen incident. He do not know whether accused assaulted the complainant.
11 On the basis of the evidence adduced by the prosecution, trial Court gave a fnding that the prosecution has not proved that on 8th July, 2000 accused had caused grievous hurt to the complainant. Prosecution has also failed to proved that the accused had caused hurt to the complainant, and, intentionally insulted and provoke the complainant for causing breach of peace. It was observed that the complaint dated 7 th July, 2000 at Exhibit-21, contains diferent facts. It is mentioned that on 7th July, 2000 at 7:30 a.m. when complainant was sitting on the platform of her house, accused no.1 told her to leave the house, and, assaulted her with fst and kick blows. It is also mentioned in the complaint Exhibit-21 that accused no.1 threatened the complainant to cause her death, and, hence, she lodged the complaint at Mulher outpost. The notings on the complaint shows that non cognizable complaint was registered at Mulher outpost rpa 10/15 236 apeal 1210 2007.doc and the complainant was directed to approach the Court. In the complaint, P.W.3 stated that the accused told her to leave the house and abused her and assaulted with iron rod. Thus, the deposition is contrary to the complaint at Exhibit-21. It was further observed that in respect to incident dated 8 th July, 2000, there is no separate complaint on record. Supplementary statement of the complainant recorded on 18th July, 2000. The submission of the prosecution is that Exhibit-52 is nothing but the complaint relating to incident dated 8 th July, 2000, and, it has to be treated as FIR. Jaikheda Police station has registered C.R.No.92 of 2000 for the ofences punishable under Section 325, 323, 504 read with 34 of IPC, after supplementary statement was recorded. P.W.3 has specifcally deposed that she rushed to the police station immediately after the incident dated 8 th July, 2000, and, lodged the complaint. There is nothing on record to show that on 8th July, 2000, any complaint was registered at Jaikheda police station or Mulher outpost. The investigating oficer has not deposed in that regard. In the light of such discrepancies the trial Court has observed serious doubt is created against the story of prosecution since the complainant has stated that after the incident dated 8th July, 2000, she rushed to the police station and lodged the complaint. The investigating oficer has stated that he rpa 11/15 236 apeal 1210 2007.doc referred the complainant to hospital on 7 th July, 2000 itself. There was no injuries on the complainant on 7 th July, 2000. She has not stated that she sustained any injury in the incident dated 7 th July, 2000. The injury certifcate at Exhibits-39 and 41 were produced by the prosecution. The medical oficer has examined the injured. Exhibit-38, however, shows that the medical oficer suspected fracture over the right arm. The notings on the injury certifcate at Exhibit-39 shows that it was produced to the police on 8 th July, 2000. It was for the investigating oficer to register the ofence on same day. The certifcate shows injuries sufered by the injured. 12 Thus noting the infrmities in the evidence of several witnesses, the trial Court found that the prosecution has not established the charges. It was observed that the eye witnesses are deposing contrary facts to each other in respect of the incident dated 7th July, 2000 and 8th July, 2000. The independent eye witnesses did not support the prosecution case. The relations between the accused no.1 and the complainant were strained. 13 P.W.1 is the panch witness to spot panchanma (Exhibit-17). The panchanama was recorded on 19th July, 2000. Stick allegedly used in the ofence was recovered. The alleged rpa 12/15 236 apeal 1210 2007.doc incident had occurred on 8th July, 2000. The recovery from spot of incident was efected after 10 days from incident. P.W.1 has not supported prosecution case. P.W.2 is the eye witness. He has resiled from his statement. P.W.3 has stated that she had stayed in the house of P.W.2 on 7th July, 2000. P.W.2 was hostile witness. P.W.3 is the injured witness. She is the wife of accused no.1. She has referred to incident dated 7th July, 2000 and 8th July, 2000. According to her, she was in the house on 7th July, 2000. Accused No.1 abused and assaulted her with iron bar. She went to police station at Mulher and lodged complaint. She stayed at the house of P.W.2. She again went to her house on 8 th July, 2000. Accused no.1 assaulted by stick on hand. She again went to police station. She fled complaint. Police referred he to health centre. She was admitted for 8 days. She received medical certifcate on 18 th July, 2000. Exhibit-21 is the complaint dated 7 th July, 2000. It refers to incident dated 7th July, 2000. The complaint alleges that complainant was assaulted by fst and kicks. She was abused and threatened. In examination-in-chief, P.W. 3 has stated that on 7 th July, 2000, she was assaulted by iron bar. Exhibit-21 do not refer to assault by iron bar. In the cross-examination, she denied that, she had informed police that on 7th July, 2000, she was assaulted by iron rod. The complaint dated 7th July, 2000, was recorded as rpa 13/15 236 apeal 1210 2007.doc N.C. complaint. The complainant was advised to approach Court for fling complaint. The complaint dated 8 th July, 2000, is not produced by complainant or police. Such complaint is not on record. The prosecution case is based on complaint dated 8 th July, 2000. C.R.No.92 of 2000, was registered. The prosecution has not clarifed as to which is the FIR in C.R.No.92 of 2000. The marriage between P.W.3 and accused no.1 was performed in 1972. She was demanding property. Her demand was not accepted by accused no.1. She fled complaint and suit. It appears supplementary statement of complainant was recorded after production of medical certifcate on 18 th July, 2000. Why police did not followed up with hospital and obtain medical papers is moot question. The complainant had motive to implicate accused. P.W.4 is relative of complainant. He has stated that incident dated 8th July, 2000, had occurred at 06:00 a.m. He is eye witness. He referred to place of incident as S.T. stand Mulher. P.W.3 has not stated that incident dated 8th July, 2000, had occurred near incident. He is silent about incident dated 7th July, 2000. P.W.3 has stated that incident dated 7th July, 2000 and 8th July, 2000, had occurred on platform of house. According to P.W.5 Bhika Lokhande, he is brother of complainant. Incident is dated 8 th July, 2000. According to him, he is eye witness to the incident. He took rpa 14/15 236 apeal 1210 2007.doc P.W.3 to Mulher to send her to husband's house. P.W.3 has not referred to his presence. There was no complaint regarding incident dated 7th July, 2000. He had been to police station for fling complaint. His version is contrary to Exhibit-21 i.e. complaint dated 7th July, 2000. P.W.6 has not supported prosecution. P.W.7 is medical oficer. He examined P.W.3. He issued medical certifcate on receipt of X-Ray report. He admitted that on medical certifcate and register, it is not mentioned that, P.W.3 was referred by police. There is alteration in date mentioned in register. He has stated that P.W.3 was referred to civil hospital Nashik. The medical case papers of said hospital are not on record. He did not bring X-Ray certifcate. Medico-rlegal certifcate was issued on 18 th July, 2000. Weapon of assault was not shown to him. P.W.8 was at Mulher outpost. According to him, on 7th July, 2000, one lady came to outpost and lodged complaint. He registered the occurrence. Complainant was referred to medical examination. On 18th July, 2000, complainant fled medical certifcate showing grievous injury. Supplementary statement was recorded. He registered crime at Jaikheda police station (Exhibit-21). His evidence contradicts P.W.3. On 7 th July, 2000, there were abuses and threat. On that day, N.C. was registered. Exhibit-21 is N.C. and not FIR. This witness has not rpa 15/15 236 apeal 1210 2007.doc produced proforma of FIR. Reference letter Exhibit-51 does not contain his signature, although, it was issued by him. He stated that date was wrongly mentioned on Exhibit-51 as 8 th July, 2000. It was given on 7th July, 2000. P.W. 9 was hostile. All these discrepancies speaks volumes of doubt about version of prosecution witnesses.
14 This Court is examining the challenge to the judgment and order of acquittal. The parameters for adjudicating the Appeal against acquittal are well settled in several decisions of the Apex Court. I do not fnd any reason to take a diferent view in the matter. This Appeal thus fails and deserves to be dismissed.
15 Hence, I pass the following order:
:: O R D E R ::
(i) Criminal Appeal No.1210 of 2007, is dismissed and disposed of accordingly.
(PRAKASH D. NAIK, J.)