Bombay High Court
The State Of Maharashtra vs Madan Prasad Kishori Prasad Srivastav ... on 22 February, 2023
Author: Nitin W. Sambre
Bench: Nitin W. Sambre, S. G. Dige
CRIMINAL APPEAL-464-2002-j-.doc
BDP-SPS-
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO. 464 OF 2002
The State of Maharashtra ..... Appellant.
V/s
1] Madan Prasad Kishori Prasad )
Srivastav, Age 33 years, Rajaram Patil )
Chawl, Tal. Bhiwandi [original Accused )
No.1] )
)
2] Vasant Jayram Patil, )
Age 35 years, R/o. Rajnoli, Own )
House, Bhiwandi [Orig. Accused No.4] )
)
3) Lalbahadur Gaya Prasad, )
Age 22 years, R/o. Rajnoli, Bhiwandi )
[original Accused No.6] )
)
4] Lalan Prasad Balwant Mourya ) Appeal is rejected against
Age 27 years, R/o. Rajnoli, Taluka ) original accused Nos.9,10
Bhiwandi [Orig. Accused No.9] ) and 12, vide court's order
dated 11.02.2003
5] Ramashankar Jiyam Kahar, )
Age 28 years, R/o. Ranjnoli, Taluka )
Bhiwandi [orig Accused No.10] )
)
6] Rambrij Jiyam Kahar, )
Age 40 years, R/o. Ranjnoli, Taluka )
Bhiwandi [Orig. Accused No.12] )
)
7] Jagan Ziprya Mhatre, )
Age 32 years, R/o. Ranjnoli, Taluka )
Bhiwandi [orig. Accused No.14] )
1/12
::: Uploaded on - 02/03/2023 ::: Downloaded on - 06/06/2023 13:45:01 :::
CRIMINAL APPEAL-464-2002-j-.doc
)
8] Jagannath Dhondu Thackery )
Age 35 years, R/o. Thakur Pada, )
Own House [orig. Accused No.15] )
)
9] Dyanand Sarja )
Age 58 years, R/o. Ranjnoli, Taluka )
Bhiwandi [orig. Accused No.17] )
) Appeal is rejected against
10] Narayan Sukhdeo Koli ) original accused Nos. 17,20,
Age 30 years, R/o Ranjnoli, Taluka ) 21 vide Court's order dated
Bhiwandi [orig. Accused No.20] ) 11/02/2003.
)
11] Kanhiyalal Vidyachal Maji, )
Age 23 years, R/o. Ranjnoli, Taluka )
Bhiwandi [orig. Accused No.21] )
)
12] Adalat Balikaran Saroj, ) Appeal is dismissed against
Age 38 years, R/o. Ranjnoli, Taluka ) original accused No.24 vide
Bhiwandi [orig. Accused No.24] ) Court's order dt 23/8/2010
)
13] Bhorik Kumar Pal, )
Age 40 years, R/o. Ranjnoli, Taluka ) Appeal is rejected against
Bhiwandi [orig. Accused No.27] ) orig. accused No.27 vide
) Court's order dt 11/2/2003
)
14] Ramlakhan Parmeshwar Jaiswal, ) Appeal rejected against
Age 36 years, R/o. Ranjnoli, Kisan ) original accused No.28
Thackary Chawl, [orig. Accused No.28] ) vide Court's order
) dated 11/2/2003
)
15] Indrapalsing Havaldarsing )
Age 42 years, R/o. Kingaon, Bhiwandi, )
[orig. Accused No.33] )
)
16] Chedilal Lalmani Jayaswal ) Appeal rejected against
Age 33 years, R/o. Ranjnoli, Taluka ) orig.accused No.22 vide
Bhiwandi [orig. Accused No.22] ) Court's order dt 11/2/2003
2/12
::: Uploaded on - 02/03/2023 ::: Downloaded on - 06/06/2023 13:45:01 :::
CRIMINAL APPEAL-464-2002-j-.doc
----
Mr. A. R. Kapadnis, APP for the Appellant/State.
Mr. Joytitus Suramal h/f Onam Hingorani for Respondent Nos. 3 and
7 i.e. original Accused Nos. 6 and 33.
-----
CORAM: NITIN W. SAMBRE &
S. G. DIGE, JJ.
DATE: FEBRUARY 22, 2023
JUDGMENT:(Per Nitin W. Sambre, J.) 1] This Appeal is against the Judgment and Order of acquittal delivered by IVth Addl. District and Sessions Judge, Thane in Sessions Case No.158 of 1994 decided on 16/10/2001, thereby acquitting all the accused persons of the charge punishable under Sections 143, 147, 148, 333, 337, 338, 427, 109, 307 of the Indian Penal Code. 2] Prosecution case is, on 18/08/1992 PI Gavrane of Shantinagar Police Station received information by way of wireless message that police van posted for maintaining law and order at Malhotra Steel Product, Ranjoli, Taluka Bhiwandi has been surrounded by a mob of people. Accordingly, said Police Officer alongwith available staff of the Police Station proceeded to the said spot wherein they have noticed that police staff in the aforesaid mobile van was injured and 3/12 ::: Uploaded on - 02/03/2023 ::: Downloaded on - 06/06/2023 13:45:01 ::: CRIMINAL APPEAL-464-2002-j-.doc vehicle was vandalised.
3] The mob which was indulged into said criminal act was tried to be controlled by giving warning on loud-speaker by the said Police Officer. However when the order of lathi charge was issued, the mob started pelting stones and also used iron rods. Since the mob became uncontrollable, tear gas shells were fired, so also said Police Officer fired from his service revolver, resulting into dispersing of the mob. As such, with the help of additional staff, injured police personnel were removed to the hospital. Accordingly, offence came to be registered and accused persons were charge-sheeted.
4] Prosecution has examined in all 17 witnesses in support of its case.
P.W. 1 Dinkar Ganpat Patil who is examined by the prosecution has turned hostile.
P.W.2 Akash Bhoir has not supported the prosecution story. 4/12 ::: Uploaded on - 02/03/2023 ::: Downloaded on - 06/06/2023 13:45:01 :::
CRIMINAL APPEAL-464-2002-j-.doc P.W. 3 Prabhakar Nathu Chowdhari, Police Personnel has in his examination-in-chief reiterated prosecution story. However, he has stated in his cross-examination that neither the complaint was lodged in respect of the said crime nor the police reached over the spot on complaint of the Company.
P.W. 4 - Gulabrao Patil in his examination-in-chief, while reiterating prosecution story, has named accused Tapan Thakre, Jaywant Patil and others and further stated that Vasant Patil might be present in Court but he cannot identify him.
P.W. 5 Pandurang Khamkar, while reiterating prosecution story, though has named in his examination-in-chief accused Jagan Thakre, Lalbahadur, Pancham, Vasani, in cross-examination, he has stated that he is not in a position to identify Jangam and Pancham.
P.W. 6 Kabir Mahadu Tadvi in his examination-in-Chief, while reiterating prosecution story, has named accused Dayaram Yadav, Jagan Thakre, Bachulal Shaikh, Shivpujan Arafat but in cross- examination he has stated that he can only identify Jagan. 5/12 ::: Uploaded on - 02/03/2023 ::: Downloaded on - 06/06/2023 13:45:01 :::
CRIMINAL APPEAL-464-2002-j-.doc P.W. 7 Baburao Kisan Gavrane, a Police Personnel, while reiterating prosecution story, in his examination-in-chief though has named accused Jagan Thakre, Lalbahadur, Pancham, Jagannath Mhatre, Mohan Prasad, Yadav, Adalat Saroj, Shivpurjan Munichand, Vishwakarma and Bachulal Shaikh Vasant Patil and stated that all these accused were instigators, in his cross-examination he has stated that the names of the said accused were transpired to him through witnesses.
P.W. 8 Tukaram Sakharam Walunj, a Police Personnel, while reiterating prosecution story in his examination-in-chief though has named accused Jagan Mhatre, in his cross-examination he has stated that said accused was known to him being a Union Leader.
P.W. 9 Sakha Anantrao Shingade, a Police Personnel, while reiterating prosecution story has stated in his examination-in-chief that he does not recollect any of the accused.
P.W. 10 Ganpat Gopal Pashte while reiterating prosecution case 6/12 ::: Uploaded on - 02/03/2023 ::: Downloaded on - 06/06/2023 13:45:01 ::: CRIMINAL APPEAL-464-2002-j-.doc though has named in his examination-in-chief accused Jagan Mhatre, Lalbahadur, Pancham, Bachulal Yadav Patil, he has stated that out of these four accused only Vasant & Jagan Mhatre are present before this Court.
P.W. 11 Dr Satish Govindrao Talekar has stated in his cross- examination that all police staff received simple injuries except Shingade. He has further stated that he has not recorded history of the patient and has not specifically mentioned in the certificate as to who has referred the patient to IGM hospital for treatment and who have brought them for examination.
P.W. 12 Bharat Moruti Bhoir has turned hostile.
P.W. 13 Abhimanyu Mane has, like other policemen, reiterated prosecution story in examination-in-chief and named some accused viz Vasant Patil, Jagan Mhatre, Madan Shrivastav, Lalbahadur Prasad and Hajrat. However, in his cross-examination he has stated that he is acquainted with Union Leaders of the said Company and he knows Vasant Patil and Jagan Mhatre as Union Leaders but does not know as 7/12 ::: Uploaded on - 02/03/2023 ::: Downloaded on - 06/06/2023 13:45:01 ::: CRIMINAL APPEAL-464-2002-j-.doc to whether other persons named by him are Union Leaders or not and whether they are members of the assembly.
P.W. 14 Dr. Shivram Laxman Waghmare has stated in his evidence that Shingade has received grievous hurt. However, in his opinion, same is not sufficient to cause death.
P.W. 15 Nasirkhan Pathan while reiterating the prosecution story, has admitted in his evidence that except Jagan Mhatre, Vasant Bhoir, Morya Budarmal and Indrapal, he is not in a position to name the other accused.
P.W. 16 Vishnu Chate while reiterating the prosecution story, in his examination-in-chief has stated that he has witnessed Vasant Patil and Jagan Mhatre and other 150 people. He has identified Jagan Mhatre in the court hall but has not identified Vasant Patil. He has further deposed that he cannot tell definitely as to whether accused were present in the mob/assembly or not.
P.W. 17 Balasaheb Gaidhane, Police Personnel, has deposed 8/12 ::: Uploaded on - 02/03/2023 ::: Downloaded on - 06/06/2023 13:45:01 ::: CRIMINAL APPEAL-464-2002-j-.doc about the formalities as to whom he has arrested. 5] Learned APP Mr. Kapadnis would urge that Court below has failed to appreciate the evidence that public servant who is a policeman (P.W.16) has specifically witnessed the accused persons viz Vasant Patil and Jagan Mhatre. According to him, Court below has failed to appreciate the evidence that injured police personnel have received serious injuries and as such offence under Section 307 of the IPC was made out against the accused persons. It is further urged that the mob became unruly by forming unlawful assembly and their intention was to hurt and deter the public servants from discharging their duty and as such physical force was used for the same. He would further urge that public property was damaged by the accused persons and as such judgment impugned warrants reversal, thereby directing conviction of the accused persons for the charge alleged. So as to substantiate said contentions, he has invited attention of this Court to the evidence of P.W. 4 - Gulab, P.W. 5 Pandurang, P.W. 7 - Baburao, P.W. 10 - Ganpat and P.W. 11 - Dr. Satish so as to establish injuries suffered by the police personnel.
9/12 ::: Uploaded on - 02/03/2023 ::: Downloaded on - 06/06/2023 13:45:01 :::
CRIMINAL APPEAL-464-2002-j-.doc 6] With the assistance of the learned APP and Counsel appearing for the accused, we have gone through the testimony of aforesaid witnesses.
7] Apart from the fact that there is no consistency in the evidence of prosecution witnesses qua involvement and role played by each of the accused in commission of the offence, what can be noticed is, not only that witnesses were unable to identify all the accused persons but they were also at disparity in naming the accused persons with a specific role.
8] It appears that the prosecution has not crystalised the role of each of the accused qua the commission of offence charged against. Presence of the accused at the spot is not established. P.W. 12 - Bharat has not identified the accused persons. He has admitted in his cross- examination that he was at inimical terms with accused Lalbahadur. If we appreciate testimony of P.W. 1 and P.W. 2, they have resiled from their statements given to the Police under Section 161 of the Criminal Procedure Code. Complaint Exhibit-55 is registered after registration of earlier complaint at the behest of P.W. 12 - Bharat at Exhibit-82. 10/12 ::: Uploaded on - 02/03/2023 ::: Downloaded on - 06/06/2023 13:45:01 :::
CRIMINAL APPEAL-464-2002-j-.doc P.W. 7 has stated that at the time of incident, mob of approximately 150 people was pelting stones and throwing iron rods against the policemen. It is claimed that accused Lalbahadur, Ramashankar and others were instigating the mob. However, he has admitted in cross- examination that he is unable to identify the accused persons but for a few. He has stated that he has received information from witnesses. However, he was not able to name the witnesses from whom he has received the information about the accused persons. P.W. 5 and P.W. 6 though have stated about presence of certain witnesses viz. Lalbahadur, Dayaram Yadav, Jagan Thakare, Jagan Mhatre, Bacchulal Shaikh, Shivpujan, Arafat, in cross-examination he has admitted that except Jagan Mahtre, he is not in a position to point out rest of the accused persons. Though P.W. 8 stated about overt act of accused Jagan Mhatre, he, however, is not in a position to name other accused persons. Similar appears to be the evidence of other alleged eye witnesses to the incident.
9] In the aforesaid backdrop, Sessions Court has recorded appropriate findings upon analysis of evidence available on record. In the absence of cogent, reliable and trustworthy evidence it cannot be 11/12 ::: Uploaded on - 02/03/2023 ::: Downloaded on - 06/06/2023 13:45:01 ::: CRIMINAL APPEAL-464-2002-j-.doc inferred that accused persons have formed an unlawful assembly with an intention of committing riot and by making use of stones and iron rods in furtherance of their common intention and object caused hurt which was sufficient to cause death. As such, upon overall appreciation of evidence, it cannot be said that prosecution was able to bring home the guilt of the accused persons alleged to be involved in the incident which has occurred way back in 1992 of which acquittal was recorded on 16/10/2001.
10] In view of above, we do not see any reason to cause interference in the judgment of acquittal recorded by the Sessions Court particularly after a lapse of period of about 30 years from the date of the incident. The view expressed by the learned Sessions Judge is a possible view and as such this Court, upon re-appreciation of evidence, is not of the view that some different view is possible in the matter. That being so, Appeal stands dismissed.
[ S. G. DIGE, J. ] [ NITIN W. SAMBRE, J. ] 12/12 ::: Uploaded on - 02/03/2023 ::: Downloaded on - 06/06/2023 13:45:01 :::