Evidence of Shivdas, the injured witness, when perused, reveals that at the time of incident, he was present with the Complainant and they were talking with reference to vacating the land upon which they had constructed "Chhappar". When the accused arrived, accused No. 1 was armed with iron bar and inflicted head injury to the Complainant by the same. He further stated that he alongwith Rajendra was given kick blows and fist blows and at the time of incident, number of persons gathered on the spot including Janardhan (P.W. 6), Dilip (P.W. 7), one Balu and others. It is material to point out that evidence of Rajendra (P.W. 1) is totally silent on the said aspect of presence of Dilip, Janardhan and Balu as deposed by this witness. {Para 5}
With reference to evidence of Shivdas on the point of assault, when his cross-examination is perused, his evidence appears to be contrary to the evidence of Rajendra, when he has admitted that prior to the incident, relations between himself, the Complainant on one side and the accused were not cordial as they were not on visiting terms, however, according to Rajendra (P.W. 1), the relations were good. Though according to Rajendra, on the day of incident, he was required to visit Nagar for some work and Shivdas was present in the hotel, Shivdas in total contrast to above evidence deposed that on the day of incident, both of them were running hotel upto 08:30 pm to 09:00 pm.
IN THE HIGH COURT OF BOMBAY (AURANGABAD BENCH)
Criminal Appeal No. 427 of 2002
Decided On: 22.04.2014
The State of Maharashtra Vs. Shankar Nana Shende
Hon'ble Judges/Coram:
P.N. Deshmukh, J.
Citation: 2014 ALLMR (CRI) 4008, 2015(2) MHLJ (CRI) 717, MANU/MH/2443/2014
1. The prosecution has preferred this appeal against the judgment dated 24th April, 2002 passed in Regular Criminal Case No. 45 of 2002 by the learned Judicial Magistrate First Class, Shrigonda acquitting both the accused of the offences punishable under Sections 323, 324, 504 and 506 read with Section 34 of the Indian Penal Code and under Sections 37(1)(3), 135 of the Bombay Police Act.
During the pendency of the present appeal, it came to be abated against original Accused No. 1/Respondent No. 1 - Shankar Nana Shende, since dead.
In brief, it is the case of the prosecution that the incident took place on 20th March, 2002 at 09:00 pm, in front of house of Rajendra, the Complainant, where he was present with Shivdas, his brother and were discussing about vacating the premises. It is the case of prosecution that at that time, both the accused arrived on the spot when accused No. 1 was armed with iron bar and on directing the Complainant and Shivdas to vacate the premises, extended abuses and in the course of same transaction, accused No. 2 manhandled Rajendra and Shivdas by kick blows and fist blows while accused No. 1 committed assault by iron rod on the head of Rajendra.
It is the case of prosecution that immediately after the incident, complaint came to be lodged by Rajendra vide Exhibit-16, which was recorded by Ramdas Bhau Dalvi, A.S.I. attached to Shrigonda Police Station and forwarded the injured Rajendra for his medical examination. Further investigation in Crime No. 68 of 2000 was carried out by Popat Baburao Sudrik, Police Head Constable. During the course of which, he drew spot Panchanama, recorded statements of six witnesses and filed charge-sheet.
Charge is framed against the accused for the offences punishable as above. According to the accused, Rajendra sustained head injury accidentally. It is also the case of the accused that on the day of incident, Rajendra by visiting the house of the accused No. 1, outraged modesty of his wife and thus, fearing that said accused and his wife would file case against Rajendra, he has lodged false complaint against the accused persons, who are brothers.
2. The learned trial Court on considering the evidence, acquitted both the accused of the offences aforestated. Hence, this appeal.
3. Heard Mr. S.M. Jadhav, learned AGP for the Appellant/State and Mr. D.B. Rode, learned counsel for the Respondents.
4. It has come in the evidence of Rajendra (P.W. 1) that the incident occurred on 20th March, 2002 at 09:00 pm, in front of his house where he was present with his brother Shivdas (P.W. 2), where both the accused arrived, while accused No. 1 was having iron bar in his hand and assaulted Rajendra on his head due to which he became unconscious. According to this evidence, prior to assault on his head, he and Shivdas were manhandled by both the accused by giving kick blows and fist flows. He has further stated that he has accordingly visited Shrigonda Police Station and lodged complaint at Exhibit-16.
Though in his evidence, it has come on record that the land upon which their house structure is erected, belonged to the accused and for that purpose, accused, according to the Complainant, had arrived on the spot asking the Complainant to vacate the premises, in the cross-examination, Rajendra admits that his relations with the accused were good and that prior to the incident, there was no dispute between themselves on the count of land. In view of evidence as above, it is difficult to rely upon the evidence of Rajendra, the Complainant that the incident took place on the count of accused persons insisting him to vacate the premises. Moreover, there is nothing on record to establish nor any investigation is carried out to establish that the house structure of Complainant, at the time of incident was erected on the land belonging to the accused persons.
Rajendra has further admitted that he has a hotel situated within the of S.T. stand premises at Shedgaon, which was run by him and his brother Shivdas. It has come in evidence that on the day of incident, he was at Nagar for some work while Shivdas was at the hotel. Rajendra has denied that on the day of incident at 08:30 pm., he visited the house of accused No. 1 and outraged modesty of his wife. He has denied that due to this incident, wife of accused No. 1 raised cries and thereafter, he went to his hotel near the S.T. stand. The Complainant denied that he sustained head injury accidentally while driving motorcycle, which gave dash to electric pole. In the later part of his cross-examination, the Complainant admitted that since he sustained head injury, he became unconscious and as such he could not see if any persons were on the spot. In view of this evidence of Rajendra, his evidence about accused manhandling him and Shivdas also does not appear to be truthful as it has come in his evidence that after arrival of accused on the spot, when accused No. 1 was armed with iron rod, he assaulted him on his head due to which he become unconscious. In that view of the matter, evidence of Rajendra about accused manhandling him and Shivdas does not appear to be truthful. As such, I find much substance when it is suggested to Rajendra that the accused had not manhandled him or Shivdas by giving kick blows and fist flows.
5. Evidence of Shivdas, the injured witness, when perused, reveals that at the time of incident, he was present with the Complainant and they were talking with reference to vacating the land upon which they had constructed "Chhappar". When the accused arrived, accused No. 1 was armed with iron bar and inflicted head injury to the Complainant by the same. He further stated that he alongwith Rajendra was given kick blows and fist blows and at the time of incident, number of persons gathered on the spot including Janardhan (P.W. 6), Dilip (P.W. 7), one Balu and others. It is material to point out that evidence of Rajendra (P.W. 1) is totally silent on the said aspect of presence of Dilip, Janardhan and Balu as deposed by this witness.
With reference to evidence of Shivdas on the point of assault, when his cross-examination is perused, his evidence appears to be contrary to the evidence of Rajendra, when he has admitted that prior to the incident, relations between himself, the Complainant on one side and the accused were not cordial as they were not on visiting terms, however, according to Rajendra (P.W. 1), the relations were good. Though according to Rajendra, on the day of incident, he was required to visit Nagar for some work and Shivdas was present in the hotel, Shivdas in total contrast to above evidence deposed that on the day of incident, both of them were running hotel upto 08:30 pm to 09:00 pm.
On the point of incident, Shivdas admitted that no conversation took place between the accused and himself or Rajendra before incident as according to him, accused No. 1 immediately gave blows. He further admits that thereafter, quarrel was going on for 1520 minutes. It is also admitted, as already stated above by Shivdas, that immediately after blows, sustained by Rajendra, he become unconscious. In that case, evidence of Shivdas about there being quarrel that took place for about 1520 minutes after the incident of assault on the head of Rajendra, does not appear to be truthful.
Moreover, evidence of P.W. 2 - Shivdas, even otherwise do not inspire confidence for the reasons already stated above and also for the reason that there is no medical evidence in respect of Shivdas, brought on record. In fact, it appears that during the course of investigation, he was not even referred to for his medical examination.
6. Prosecution though appears to have relied on the evidence of Janabai wife of Shivdas, as an eye witness, her evidence do not substantiate the case of prosecution, establishing involvement of either of the accused for committing assault on the Complainant or Shivdas, as in her short evidence, it is stated that at the time of incident, when she was present alongwith her mother-in-law on the platform in the house, both accused arrived, when accused No. 1 was armed with iron bar and gave blows to Rajendra due to which he sustained head injury. As such, evidence of Janabai is totally silent about either of the accused giving kick blows and fist blows to Rajendra and Shivdas. Evidence of Shivdas thus do not find corroboration from the evidence of Janabai nor there is medical evidence corroborating his oral version as stated earlier. Contrary to the evidence of Complainant, Janabai has admitted that prior to the incident of assault, there was some conversation for about 15 minutes.
7. Though, prosecution has also examined Dilip Digambar Mhaske, on the point of incident, he has stated that when the incident took place, he was in his house, which is situated at a distance of 150 feet from the spot and on hearing commotion, he arrived on the spot and found quarrel, which was in progress between the Complainant, Shivdas and both the accused, which he separated. Above piece of evidence of Dilip does not inspire confidence as according to him, when he reached the spot, he noted head injury, sustained by Rajendra. As such it is no case of prosecution nor evidence of Dilip that he had witnessed the incident of assault on the head of Rajendra by accused. As according to him, on his reaching the spot, he noted bleeding injury sustained by Rajendra, though according to him, accused No. 1 at that time was found having armed with iron bar. Evidence of Dilip further finds doubtful when he has admitted to be not aware if the Complainant has sustained head injury by negligently driving the motorcycle which dashed against the electric pole causing bleeding injury.
Prosecution case is further doubtful from the evidence of Janardhan Nivrutti Kale, when he has stated that the incident took place at about 09:00 pm in front of house of Shivdas, when he was present in his house and on hearing commotion, visited the spot where he noted number of persons who have gathered and found Rajendra, to have sustained head injury. In view of the above contradictory evidence and admittedly as there is no independent witness examined by the prosecution nor any satisfactory explanation is put forth on this aspect, though from the evidence on record, it reveals that there are other residential houses surrounded the spot, evidence on record is not convincing to be acted upon.
Having considered the above evidence, prosecution thus does not find to have established beyond reasonable doubt the charge levelled against the Respondents nor there is any evidence to establish that the accused in the course of same transaction, insulted the Complainant or his brother to provoke breach of peace or had extended threats to cause death or grievous hurt to them as there is absolutely no evidence on record to establish said charge. It is further noted that the evidence led by the prosecution is too short to establish the offence punishable under Section 135 of the Bombay Police Act. In that view of the matter, there is no substance in the appeal. The appeal is thus dismissed.
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