Oral Judgment :
This is State Appeal against the Judgment and Order dated 13/12/2010, of acquittal, passed by the Learned Judicial Magistrate, First Class, Mapusa, in Criminal Case No.168/S/2009/F.
2. The respondents were the accused persons in the said Criminal Case No.168/S/2009/F and it was the case of the prosecution that on 29/10/2008 at about 15.45 hours both the respondents, in furtherance of their common intention, called the complainant namely, Dharma Bhosle to Tinto Britona by giving him call on his mobile and after the said Dharma reached at the said place, they assaulted him on his head with iron knuckle pad and thus voluntarily caused him injuries. The respondents were charged with the offence punishable under section 324 r/w 34 of Indian Penal Code.
3. The respondents pleaded not guilty to the charge and in order to prove its case, the prosecution examined all together witnesses. The case of the respondents was of denial simplicitor. They did not examine any witness in their defence.
4. Upon considering the entire evidence on record, the learned Trial Magistrate held that there is no sufficient material against both the respondents and that they are entitled to benefit of doubt. Resultantly, both the respondents stood acquitted of the offence punishable under section 324 r/w 34 of I.P.C.
5. Aggrieved by the said judgment of acquittal, the State is before this Court with the present appeal. After the appeal was admitted, action under section 390 of Cr. P. C. followed. Respondent no.2 was duly served as per the report of the Police Inspector, Porvorim Police Station, whereas it was found that respondent no.1 was in judicial custody at Sawantwadi, Sindhudurg, Maharashtra. Subsequently, as per the report of the Superintendent, District Prisons, Sindhudurg, the notice of final hearing of the present appeal was also duly served on the respondent no.1, who was in the said District Prison.
6. Both the respondents are absent. However, considering the nature of the evidence produced by the prosecution on record, this Court decided to hear the appeal though none appeared on behalf of the respondents.
7. The point that arises for determination is whether the prosecution has proved beyond reasonable doubt that both the respondents, in furtherance of their common intention, voluntarily caused hurt by means of iron knuckle pad to the complainant i.e. PW.2, Mr. Dharma Bhosle.
8. PW.1, Shri Raju Morajkar had acted as a panch witness for the panchanama of scene of offence. However, nothing worth mentioning has come on record through PW.1. Similarly, the panchanama of the scene of offence (Exhibit 26) is otherwise a nil panchanama since nothing was found which could be of suspicious nature at the site.
9. PW.3, Andrew Carter and PW.6, Rajesh Dhargalkar, both acted as panch witnesses allegedly for the panchanama of arrest of the accused and attachment of the iron knuckle pad. First of all, it is clear that the said iron knuckle pad was not recovered at the instance of any of the respondents under section 27 of the Indian Evidence Act. It is seen that both the respondents were arrested on 03/11/2008 at Porvorim Police Station, as they had surrendered. It is very difficult to believe that though the alleged incident had occurred on 29/10/2008, the respondent no.1 would appear at the police station after about four days with the incriminating article, namely, iron knuckle pad and produce it before the police in the presence of panch witnesses, as is sought to be made out from the panchanama of arrest cum attachment which is at Exhibit 32. PW.3 did not support the prosecution and hence he was cross-examined by the Assistant Public Prosecutor, with the permission of the Court. According to PW.3, at Porvorim Police Station, he was shown both the respondents and the iron knuckle pad and he was told by the police that the said iron knuckle pad was used by the accused. In his cross-examination, he maintained his statement that accused no. 1 had not produced the iron knuckle pad in his presence. Such hearsay evidence cannot prove anything against the respondents. Because of the above, the second panch witness was examined. PW.6, however, improved the prosecution case by stating that accused no.1 had produced his iron knuckle pad. There being no corroboration between the two panch witnesses and further because it is not believable that the accused himself would appear at the police station with the weapon of assault, I am not inclined to rely upon the testimony of PW.6.
10. The evidence of PW.4, Dr. Dilip Kerkar and of PW.5, Dr. Anil Rane duly proves that PW.2, Dharma Bhosle had sustained injuries as mentioned in the medical certificates produced by them as Exhibits 33 and 36 respectively. However, unless the prosecution duly proves as to who is/are the author/s of the said injuries, the medical evidence is not relevant.
11. PW.7, Shri Avdumbar Bhosle is the brother of PW.2 Dharma Bhosle and PW.8, Smt. Sweta Bhosle is the wife of PW.7. A perusal of their evidence reveals that they are not eye witnesses. PW.9, Umesh Naik did not support the prosecution.
12. PW.11, Shri Shekhar Chodankar is a formal witness being the Investigating Officer.
13. What remains on record is the ocular evidence of the injured himself, namely, PW.2 Dharma Bhosle and of PW.10. Mr. Sahish Vaigankar.
14. According to PW.2 on 29/10/2008 after 2.30 p.m, he had received a phone calls from respondent no.1, Vinayak Karbotkar asking him to come to Tinto Britona. He further deposed that he was on his Dio scooter along with his friend Sahish Vaigankar and at Tinto Britona they stopped when respondent no.2, Mohan alias Mayu Shirodkar, hallowed him. According to PW.2, in the mean time, respondent no.1 assaulted him on his head with an iron knuckle duster twice and he fell down and thereafter, both the accused assaulted him with kicks and thereafter Sahish Vaigankar brought him home.
15. Admittedly, PW.2 did not state to the police at the time of recording his complaint that Sahish Vaigankar was on his scooter as pillion rider and was present along with him at the time of incident. The complaint is at Exhibit 29. Truly, in this complaint, there is no whisper about the presence of Sahish Vaigankar (PW.10) at the time of incident or as pillion rider. The complaint reveals that PW.2 was alone, all the time.
16. A perusal of the evidence of PW.10 would show that he has not corroborated PW.2 on material aspects. In fact, as stated by him in his cross examination, he did not state to the police that he had accompanied Dharma (PW.2) on the relevant day towards Old Goa for his work. The cross examination of PW.10 further reveals that he was taken to the police station by PW.2 himself for recording his statement. Though the incident had occurred on 29/10/2008, PW.2 had taken PW.10 to the police station for recording his statement in the month of May 2009, which shows that there is inordinate delay in recording his statement. Definitely, there is reasonable doubt as to whether PW.10 was an eye witness.
17. A perusal of the medical certificate dated 29/10/2010 issued by Dr. Dilip Kerkar (PW.4) reveals that PW.2 had given history of assault on head by means of iron rod. PW.4 has deposed that the patient had complained that he was assaulted on the head by an unknown person on the head with iron rod. Thus, there is doubt whether PW.2 was assaulted with an iron knuckle pad or with an iron rod and further whether he was assaulted by unknown person or by respondents.
18. Considering the nature of the evidence produced by the prosecution, as discussed above, I am of the considered view that the learned Trial Magistrate has rightly rejected the evidence of PW.2 as well as of PW.10 and has rightly given benefit of doubt to both the respondents. The evidence of PW.2 and PW.10 does not at all inspire confidence. When reasons given by the trial Judge for recording acquittal of the accused persons are reasonable and plausible, there is no question of interference with the said reasons and consequently with the acquittal. In the circumstances above, no interference is called for with the impugned judgment and order of acquittal of the respondents.
19. In view of the above, the appeal stands dismissed.