Bombay High Court
State Of Mah.Thr.P.S.O.Lonar vs Arjun Deorao Kayande & Anr on 4 July, 2018
Author: Manish Pitale
Bench: Manish Pitale
1 040718 appeal 703.03 judg..odt
IN THE HIGH COURT OF JUDICATURE AT BOMBAY :
NAGPUR BENCH : NAGPUR.
Criminal Appeal No.703 of 2003
State of Maharashtra,
through Police Station Officer, Lonar,
Distt. Buldhana. .... Appellant.
-Versus-
1] Arjun Deorao Kayande,
Age 50 years,
2] Ramsing Mannu Shere,
Age 45 years,
Both r/o.-Kinhi, Tq. Mehkar, Distt. Buldana. .... Respondents.
Mrs. Shamsi Haider, APP for appellant/State.
None for the respondents.
Coram : Manish Pitale, J.
Dated : 04 July, 2018.
th
ORAL JUDGMENT
This is an appeal against acquittal filed by the appellant/State against the impugned judgment and order passed by the Court of Judicial Magistrate First Class, Mehkar (trial Court) in Regular Criminal Case No.152 of 1997, whereby the respondents/accused have been acquitted of offence punishable under Section 394 read with Section 34 of the Indian Penal Code (IPC). The trial Court has found that the evidence produced on record by the prosecution was not sufficient to prove its case and that the respondents/accused were entitled to benefit of doubt.
::: Uploaded on - 05/07/2018 ::: Downloaded on - 06/07/2018 01:42:44 :::2 040718 appeal 703.03 judg..odt 2] According to the prosecution, the injured victim in the present case i.e. Ramesh (PW-2) was assaulted on 17-05-1997 and the information about such assault was received by his nephew Govind (PW-1 and complainant) at about 10.00 pm at his house. He was told by one Madan (PW-3) that his uncle had been assaulted by thieves on Lonar to Kingaon-jatto road and that the said Madan (PW-3) had brought the injured Ramesh (PW-2) to village Kinhi. Due to the assault and injuries suffered, Ramesh (PW-2) remained unconscious in hospital for a long period of time. It was when he regained consciousness on 13-06-1997, said Ramesh (PW-2) disclosed that on 17-05-1997 at about 8.00 pm, the respondents/accused with one other person had assaulted him and taken away Rs. 3000/- from his pocket. It was stated that Madan (PW-3) had reached there on motorcycle and on seeing him, the respondents/accused and the third person ran way from the spot. On this basis, the respondents were prosecuted for having committed the said offence.
3] In support of its case, the prosecution examined eleven witnesses. The material witnesses were PW-1-Govind (complainant), PW- 2-Ramesh (injured victim), PW-3-Madan, PW-8-Tahsildar, who conducted identification parade, PW-9-Mohan, brother of the injured Ramesh and PW-11-Investigating Officer.
4] It was claimed by (PW-8) Tahsildar that the injured victim Ramesh (PW-2) had identified the accused in identification parade. It was also claimed by (PW-9) Mohan, brother of injured Ramesh, that he had prepared a chit stating names of 4 to 5 persons including the names of ::: Uploaded on - 05/07/2018 ::: Downloaded on - 06/07/2018 01:42:45 ::: 3 040718 appeal 703.03 judg..odt the respondents/accused and when it was shown to injured Ramesh (PW-
2) in the hospital, said Ramesh had pointed his finger towards the names of the respondents/accused. On this basis also, it is claimed by the prosecution that injured Ramesh (PW-2) had identified the respondents as the assailants.
5] On the basis of the aforesaid evidence and material on record, the trial Court found that on the day of assault when (PW-3) Madan had first seen injured Ramesh (PW-2) at the spot of incident and carried him to village Kinhi, injured Ramesh (PW-2) stated that some persons had assaulted him. The names of the assailants were not disclosed. It was only after almost a month on 13-06-1997, after the injured Ramesh (PW-2) regained consciousness that he allegedly disclosed the names of the respondents as the assailants. The trial Court found that when injured Ramesh (PW-2) had already disclosed the names of the respondents as the assailants, there was no need for conducting identification parade by (PW-8) Tahsildar. The trial Court analyzed the evidence of all the prosecution witnesses and it found that the non disclosure of the names of the assailants by injured Ramesh (PW-2) to Madan (PW-3) immediately after the assault had taken place, created doubt about the prosecution case. The trial Court also took into account the fact that the alleged chit on which (PW-9) Mohan had written names of 4 to 5 persons along with the names of the accused, was never seized by the Police and therefore this factor also created a doubt about the prosecution story. It was found by the trial Court that there was insufficient material on record to connect the respondents/accused with the incident in question. On this basis, the trial Court granted benefit of doubt to the respondents and acquitted them.
::: Uploaded on - 05/07/2018 ::: Downloaded on - 06/07/2018 01:42:45 :::4 040718 appeal 703.03 judg..odt 6] Mrs. Shamsi Haider, learned APP appearing on behalf of the appellant/State submitted that when the injured victim Ramesh (PW-2) had specifically named the respondents as the assailants and he had identified them, there was no reason for the trial Court to have acquitted the respondents. It was submitted that the evidence of (PW-3) Madan and that of the complainant (PW-1) Govind did corroborate the fact that the injured Ramesh (PW-2) had been indeed assaulted on 17-05-1997. It was submitted that there was sufficient material to connect the respondents with the incident in question and that therefore, the impugned judgment and order deserved to be set aside.
7] None has appeared on behalf of the respondents. 8] A perusal of the evidence of prosecution witnesses shows that
there is no eye witness to the incident in question. The only person who could be said to be an eye witness to the incident in question was injured Ramesh (PW-2) himself. It has come on record that the incident took place at about 8.00 pm on 17-05-1997, when the said witness Ramesh (PW-2) was assaulted. As per the testimony of Ramesh (PW-2) himself, it was Madan (PW-3) who reached the spot and upon Madan reaching there, the assailants left the spot of the incident. The said Ramesh (PW-2) stated that Madan (PW-3) took him to village Kinhi and that after Madan narrated the incident to (PW-1) Govind (nephew of the injured Ramesh), the said Ramesh fell unconscious. A perusal of the evidence of (PW-3) Madan shows that he also claimed to have seen the injured Ramesh (PW-2). The crucial part of the evidence of (PW-3) Madan is that ::: Uploaded on - 05/07/2018 ::: Downloaded on - 06/07/2018 01:42:45 ::: 5 040718 appeal 703.03 judg..odt according to him, injured Ramesh (PW-2) stated to him that some persons had assaulted him. Thereafter, Madan (PW-3) took the injured Ramesh (PW-2) to village Kinhi. The said witness Madan (PW-3) nowhere stated in his evidence that during this period when he saw injured Ramesh (PW-
2) and took him to village Kinhi, said Ramesh (PW-2) disclosed the names of the respondents as the assailants.
9] It has further come on record that (PW-9) Mohan, brother of the injured Ramesh (PW-2) claimed that he had written names of 4 to 5 persons on one chit and when the said chit was shown to Ramesh (PW-2) in the hospital he pointed his finger towards the names of the respondents/accused as the persons who had assaulted him on 17-05- 1997. It is significant that the aforesaid chit was never seized by the Police. Therefore, it was for the first time on 13-06-1997 i.e. after about a month of the assault, that upon regaining consciousness, the injured victim Ramesh (PW-2) for the first time disclosed that the respondents along with a third person had assaulted him. The said Ramesh (PW-2) knew the respondents and named them. Yet, identification parade was conducted by (PW-8) Tahsildar wherein said injured witness Ramesh (PW-2) allegedly identified the accused. When the injured witness Ramesh (PW-2) had already named the accused, there was no need for identification parade and therefore, the trial Court correctly discarded the evidence of (PW-8) Tahsildar.
10] In this situation, non disclosure of names of the respondents/accused by the injured witness Ramesh (PW-2) to Madan (PW-3) immediately after the incident had occurred, dealt a fatal blow to the prosecution case. The failure on the part of Investigating Officer to ::: Uploaded on - 05/07/2018 ::: Downloaded on - 06/07/2018 01:42:45 ::: 6 040718 appeal 703.03 judg..odt seize the chit on which Mohan (PW-9) had allegedly written the names of 4 to 5 persons on the basis of which the injured witness Ramesh (PW-2) had allegedly identified the respondents as the assailants, also shows that the said witness Mohan (PW-9) and the prosecution were seeking to somehow connect the respondents/accused with the incident in question. In the absence of cogent evidence to support the prosecution case, the benefit of doubt would certainly go to the respondents/accused. The trial Court has come to this very conclusion on the basis of analysis of the evidence of prosecution witnesses. The view taken by the trial Court is a possible view, on the basis of the evidence and material on record. As two views were possible, the one favouring the respondents/accused was accepted by the trial Court and no fault can be found with the said approach adopted by the trial Court.
11] Even otherwise, in an appeal against acquittal, the prosecution is required to demonstrate that each and every finding reached by the trial Court is rendered perverse as the appreciation of the evidence and material on record is erroneous. But, in the present case, the appellant State has failed to demonstrate any such perversity or error on the part of the trial Court in passing the impugned judgment and order. Hence, this appeal is dismissed and the impugned judgment and order passed by the trial Court is confirmed.
JUDGE Deshmukh ::: Uploaded on - 05/07/2018 ::: Downloaded on - 06/07/2018 01:42:45 :::