Judgment:
Judgment
01. Heard learned counsel for the parties.
02. This appeal is directed against the judgment and order dated 6.1.2000 rendered by the learned Judicial Magistrate, First Class, Purna, District Parbhani, in Regular Criminal Case No.485 of 1997, thereby acquitting the respondents herein (original accused) for the offences punishable under Sections 326 and 324 read with Section 34 of the Indian Penal Code.
03. The factual matrix of the matter, which gave rise to the present appeal, is as mentioned below;
It is the case of the prosecution that on 27.4.1997 at about 22.00 hours at village Satephal, in front of statue of Dr. Babasaheb Ambedkar, the accused persons, in furtherance of their common intention, asked the complainant Prabhakar Eknathrao Chavan as to why he had filed application for closure of their liquor shop, and they abused him. It is alleged that accused No.1 Bhagwant Chavan assaulted the complainant by an axe, and accused No.2 Dnyaneshwar Chavan caught hold of the complainant and accused No.3 Sakharam Jogdand also assaulted the complainant on his leg, by a stick. It is also alleged that due to the said assault, complainant sustained grievous hurt, and therefore, he lodged the complaint (Exh.33) on 28.4.1997, with Police Station, Purna, and consequently, offence came to be registered at CR No.52/1997, under Sections 326, 504 and 506 read with Section 34 of the Indian Penal Code, with the said police station. Pursuant to the said FIR, investigation was carried out and it was revealed that the accused persons had committed the offence, and therefore, after completion of investigation, charge sheet came to be filed against respondentsorig. accused Nos. 1 to 3, before the learned J.M.F.C., Purna.
04. Accordingly, learned Judicial Magistrate, Purna, framed charge against the accused persons, on 9.1.1998 vide Exh.23 for offences punishable under Sections 326 and 324 read with Section 34 of the Indian Penal Code. However, the accused persons denied the charges levelled against them and pleaded not guilty to the same, and claimed to be tried.
05. To substantiate the charges levelled against the accused persons, the prosecution has examined inasmuch as 13 witnesses, as mentioned below.
PW1 Prabhakar Eknathrao Chavan Complainant.
PW2 Uttam Eknathrao Chavan Brother of the complainant and panch to the spot panchanama (Exhibit 36).
PW3 Gangadhar Munjaji Lokhande Panch to the panchanama of seizure of axe (Exh. 38).
PW4 Baburao Tukaram Chavan Eye witness.
PW5 Dhuraji Limbaji Gawali Panch to seizure pancha nama of baniyan (Exh.42).
PW6 Ranoji Bhivaji Gaigodhane Eye witness, who allegedly intervened between accused and complainant, during the quarrel.
PW7 Gangadhar Ranoji Gaigodhane Son of PW6, & eye witness PW8 Dnyanoba Pandit Lokhande Eye witness PW9 Munja Marotrao Kadam Eye witness PW10 Rangnath Rambuwa Giri Police Head Constable,who registered FIR (Exh. 33).
PW11 Kishansingh Sopansing Parihar Police Head Constable and Investigatint Officer.
PW12 Syed Munir Gulab Panch to seizure pancha nama regarding seizure of stick (Exh. 53).
PW13 Dr.Sheshrao Abhanrao Gaiakwad Medical Officer, who had examined the complainant and issued medical certi ficate (Exhibit 60)
06. The defence of the accused persons is of total denial and they also stated that the complainant had contested and lost the election, and the accused persons belong to Shiv Sena group, and therefore, due to political enmity, the complainant has implicated them in the present case, falsely. However, the accused persons did not examine any defence witness.
07. After scrutinizing and analyzing the evidence adduced and produced on record, by the prosecution, the learned Judicial Magistrate, First Class, Purna, acquitted all the accused persons of the offences punishable under Sections 326 and 324 read with Section 34 of the Indian Penal Code, by judgment and order dated 6.1.2000, in R.C.C. No.485/1997, as stated earlier. Being aggrieved and dissatisfied by the said judgment and order of acquittal, the State has preferred the present appeal, challenging the same, and prayed for quashment thereof.
08. Before adverting to the submissions advanced by the learned counsel for the parties, it is necessary to scrutinize and analyze oral evidence adduced by the prosecution and in the said context, coming to the evidence of complainantPW1 Prabhakar Chavan, he stated that he knew the accused persons and that the incident took place on 27.4.1997 at about 10.00 p.m. in front of the house of PW6 Ranu Gaigodhane, at village Satephal. He stated that the work of painting to statue of Dr. Babsaheb Ambedkar was going on and was under progress, which he had gone to see and while returning back, the accused persons asked him, in front of the house of PW6 Ranu Bhivaji, that why he had given application to close their business of liquor, and accused Nos. 2 and 3 dealt him by stick, whereas accused No. 1 gave an axe blow on his leg and back and, therefore, he sustained injury on upper part of left side shoulder. Upon the said assault, the complainant raised hue and cry, and therefore, PW3 Gangadhar Lokhande, PW6 Ranu Bhivaji and PW8 Dnyanu Lokhade came on the spot and intervened into the said quarrel. However, complainant PW1 Prabhakar claims that he sustained grievous injuries and blood was oozing from therefrom, and hence, he went to police station, but he was first referred to the hospital for medical examination and was treated, accordingly. Thereafter, police personnel reduced his report into writing (Exh.33) and an offence was registered against the accused persons under CR No.52 of 1997 under Sections, 326, 504, 506 read with Section 34 of the Indian Penal Code. PW1 complainant identified the stick and axe as Articles A and B respectively, contending that at the time of the incident, he wore a baniyan, which he identified as Article C.
09. During cross examination, PW1 stated that the distance between village Satephal and Purna is about 18 kilometers and he came to Purna, on the relevant day, at about 12.00 p.m., by his own jeep and gave oral report to the police personnel, when he returned back from the hospital, but he could not tell time thereof. He also stated that he was in the hospital for about one hour, but could not tell the time as to when he had been to the hospital. He further stated that Dr. Gaikwad was the Medical Officer present in the hospital, at the relevant time. He also admitted that there are some houses surrounding the house of PW6 Ranu Gaigodhane, i.e. the houses of Naroji Kadam, Gayabai Lokhande and Holaji Gaigodhane. He stated that at the time of incident, 23 persons had gathered, but after lapse of time, some 1020 persons had gathered. He further stated that PW3 Gangadhar Lokhande, PW6 Ranu Gaigodahne and PW8 Dnyanu Lokhade intervened in the said matter. He, however, stated that he cannot tell the names of other persons, who had gathered at the spot. PW1 complainant further stated that distance between the statue of Dr. Ambedkar and the house of PW6 Ranu Gaigodhane is about 200 to 300 ft. He further stated that 45 persons were present near the statue of Dr. Ambedkar, but nobody from them came on the spot. He further stated that there is a police chowki at village Chudawa, of Police Station, Purna, but since there was nobody available at the said police chowki, he neither went to the said police chowki, nor did he submit there, a copy of the application against the accused persons.
10. The suggestions were given to complainant PW1 Prabhakar, and although he denied that he is Taluka President of Shetkari Sanghatana, he admitted that he was party worker of the said Sanghatana. He also admitted that he had contested election from Basmat Assembly constituency and Mr. Mundada was his opposite candidate. He also admitted that he was defeated in the election, due to securing less votes. He, however, stated that he was not aware whether the accused persons had participated in the said election and helped the opposite candidate Dr. Mundada and, therefore, a suggestion was given to him that due to opposite activities by the accused persons, he implicated them in the present case, falsely. He admitted that accused No. 1 is from his relations (bhavaki). He further stated that he does not know whether the police had mentioned the name of accused No. 1 as Bhagwat Naroji Jogdand, in stead of Chavan. He denied the suggestion that the alleged incident did not occur and the accused did not assault him. He further denied that Chabu Shriram Lokhande is his brotherinlaw, or Sahebrao is his cousin or that sister of Chabu Lokhande has been given in marriage to said Sahebrao.
11. Coming to the deposition of PW2 Uttam Chavan, panch to the spot panchanama (Exh.36). He stated that on 28.4.1997, he was called by police personnel to act as panch witness for spot panchanama, in front of house of PW6 Ranu Gaigodhane and at that time, complainant and another witness were present. The complainant showed the place of incident and the police prepared the spot panchanama and he signed the same. (Exh.36).
12. During the cross examination, this witness has admitted that the complainant is his brother and his father's name and name of complainant's father is the same i.e. Eknath, and that the complainant belongs to his bhavki, and therefore, a suggestion was given to him that the complainant is his brother, but same was denied by him.
13. That takes me to the deposition of PW3 Gangadhar Lokhande, panch to the panchanama of seizure of axe (Exh.38). He stated that on 28.4.1997, he was called by the police to act as a panch and accordingly, he went to the house of accused No.1 and police prepared seizure panchanama and he signed the same. He identified the axe before the court, which is marked as Article B.
14. In cross examination, he stated that seizure panchanama was prepared by police personnel at 6.00 p.m. and while seizing axe, he had seen it, and hence, he identified it before the court. Suggestion was given to him that the complainant is his relative, and hence, he is deposing falsely, but he denied the same.
15. That takes me to testimony of PW12, Syed Munir Gulab, panch to seizure panchanama of stick (Exh.53). He deposed that the police personnel had called him to act as panch in front of house of accused No.3 Sakharam. He further stated that there was one stick and one axe, and accused No.3 handed over the stick to police and police prepared seizure panchanama of it. (Exh. 53). He identified the said stick before the court, as Article A.
16. In the cross examination, the witness stated that he does not remember the date of seizure panchanama, but it was prepared at about 5.00 pm to 5.30 p.m. The witness further stated that there was one axe at the time of spot panchanama and it was seized by police personnel. He also stated that he did not know why police had not mentioned in seizure panchanama (Exh. 53) that there was one axe and it was seized under panchanama. The suggestion was given to him that the police did not read over the contents of Exh. 53 to him, but he denied the same. It was also suggested to the witness that there were good relations between him and the complainant, and therefore, complainant brought him to the court, but the same was denied. The suggestion was also given that no panchanama was prepared by the police in his presence and stick was not seized thereunder, but he denied the same.
17. Turning to the eye witness account, PW4 Baburao Munjaji Lokhande stated that he knows the accused persons, as well as complainant Dr. Chavan, and that the incident in question took place on 27.4.1997, at about 10.00 p.m. in front of the house of Ranoji Gaighodane (PW6) at village Satephal, and at the relevant time, he was in his house. He stated that he heard the noise and, therefore, came out of the house and went to the spot and found that there was incident of assault. The complainant Dr. Chavan and all three accused persons were present at the spot. He further stated that accused No.3 Sakharam gave a stick blow on the leg of the complainant, whereas accused No. 1 Bhagwat gave an axe blow on the back of the complainant, and accused No.2 Dnyaneshwar also assaulted the complainant, because of which the complainant sustained injuries. The witness has further stated that there were 23 houses in between his house and the place of incident, as well as there was light facility available at the spot of the incident. He identified the axe and stick (Articles A and B), as well as accused persons in the court, and stated that they were selling illicit liquor in the village and, since the complainant Dr. Chavan asked them not to sell illicit liquor in the village, the incident occurred.
18. In the cross examination, the witness admitted that the complainant is a leader of the Shetkari Sanghatana and at the relevant time, he was Taluka President and now he is the District President of the said Sanghatana. The witness also stated that the complainant had contested the election for M.L.A. from Basmat Constituency. He has also admitted that the complainant is the leader of Shetkari Kamgar Paksha, but denied that there was alliance between the said Shetkari Kamgar Pakshs and Shetkari Kamgar Sanghatana, in the above said election. Further, he stated that the distance between the place of the incident and his house is about 100 ft. However, he could not state how many persons had gathered at the spot, before he reached there, and stated that on reaching the spot, he found that the complainant and all the accused were present there. He further stated that house of accused No.3 Sakharam is adjacent to the house of Ranu Gaigodhane (PW6) and distance between house of PW6, accused No.3 and statue of Dr. Ambedkar, is about 50 to 60 ft. He also stated that out of 56 members from the family of PW6 Ranu, no one was present on the spot. Hence, suggestion was given to him that since he had friendly relations with the complainant, he is deposing falsely, but same was denied by him. It was suggested to him that the accused are having rival relations with complainant, and hence, he was deposing falsely, but he denied the same.
19. Coming to the deposition of next eye witness i.e. PW6 Ranoji Gaigodhane. He stated that he knew the accused persons, as well as the complainant Prabhakar. He also stated that the incident took place in the night, when he had slept in the house and he heard loud noise in front of his house and, therefore, he woke up and came at the door and found that all the accused persons and the complainant were present there and quarrel was going on between them and they were assaulting each other, and therefore, he intervened into the matter, but thereafter also, there was incident of assault in between the complainant and the accused persons. He further stated that accused No.3 Sakharam assaulted the complainant, by stick, whereas accused No.1 Bhagwat assaulted the complainant, but he could not tell the weapon used by him. Again he stated that accused No.1 assaulted the complainant Prabhakar by an axe, as a result of which the complainant sustained blow on his back. However, he stated that accused No.2 Dnyaneshwar did not assault the complainant, in his presence. He further admitted that he cannot tell the time of the incident, but it was night time. He stated that there was dark at the time of the incident, and he identified the accused approximately, when he intervened into the incident.
20. In the cross examination, the witness has admitted that his eye sight is weak, and also admitted that he is suffering from asthama. He admitted that the complainant brought him and his son to the court, by jeep, on that day. However, he denied the suggestion that he deposed as per the instructions of the complainant. He further stated that there is house of accused No. 3 Sakharam to the east side of his house and thereafter, public road is situated. Moreover, he stated that there were 78 persons present at the time of incident, but he could not tell the names of those persons. He also admitted that there was dark at the time of the incident and, therefore, he was given suggestion that he did not see the incident, but he denied the same. He further stated that distance between the statue of Dr. Babasaheb Ambedkar and his house, is about 100 to 125 ft. He further stated that he did not know whether there are inimical terms in between the complainant and the accused, and hence, it was suggested to him that the accused did not assault the complainant, but he denied the same.
21. Coming to the next eye witness PW7, namely, Gangadhar Ranoji Gaogodhane. He stated that he knew the accused persons and the complainant, and further stated that PW6 Ranoji is his father. According to this witness, incident took place two years back at about 10.00 p.m. to 10.30 p.m. in front of his house, and on hearing noise, he came out of his house and saw that accused No.3 Sakharam assaulted the complainant, by stick on his right leg. Moreover, he stated that accused No.1 Bhagwat had given an axe blow on the back of the complainant and hence, he intervened into the quarrel. He further stated that there was dim light in his house and light was reflected towards the spot of the incident.
22. In the cross examination, the witness has stated that before he reached the spot of incident, only complainant Prabhakar, accused No. 2 Dnyaneshwar and accused No.3 Sakharam were present at the spot. As regards distance, he stated that the distance between the statue of Dr. Ambedkar and his house is about 80 ft., but nobody came on the spot, from the said statue. He admitted that complainant Prabhakar brought him to the court, on the said day, by jeep. Hence, witness was suggested that he was deposing on instructions of the complainant, but the same was denied by him.
23. That takes me to the next eye witness PW8 Dnyanoba Pandit Lokhade. He stated that he knew the complainant and the accused and that the incident took place about 11/2 years back in front of the house of PW6 Ranoji Gaigodhane, at about 8 to 8.30 p.m. He stated that after taking dinner, he was about to go to bed and at that juncture, he heard noise of quarrel and hence, proceeded to the place of incident and found that the accused were asking the complainant as to why he had given complaint regarding their business of illicit liquor. He further stated that accused No. 2 had caught hold of the complainant, whereas accused No. 3 was armed with stick and accused No.1 was armed with an axe and accordingly, accused No. 3 assaulted the complainant on his right leg, by stick, whereas accused No.1 gave an axe blow on right shoulder of the complainant. The witness has further stated that he and PW6 Ranu intervened into the matter.
24. In the cross examination, he stated that the distance between his house and the place of the incident was about 80 to 100 ft. and there was about 45 houses in between his house and the place of the incident. He stated that there was dark at the time of incident, but there was light in front of the house of PW6 Ranu Gaigodhane and that the incident took place at a distance of about 12 to 15 ft. from the house of PW6 Ranu. As regards injuries, he stated that the complainant received injury on his back, due to assault by an axe, as well as he received bleeding injury to his shoulder. The witness has admitted that the complainant is his maternal uncle, and therefore, the suggestion was given that due to the said relations, he is deposing falsely, but the same was denied. However, he admitted that the complainant took him to the court on that day, by jeep, but denied the suggestion that he deposed as per instructions of the complainant.
25. Coming to the last eye witness PW9 Munja Marotrao Kadam, he stated that he knew the complainant Prabhakar, as well as the accused persons. He stated that the incident took place on 27.4.1997 at about 8.30 p.m. in front of house of PW6 Ranu Gaigodhane when he was at his house and when he heard noise of the quarrel and came out of the house, he found that accused Nos. 2 and 3 were asking the complainant as to why he had given complaint regarding their business of sale of illicit liquor. Thereupon, the complainant replied that he did not give any complaint and at that time, accused No.2 Dnyaneshwar caught hold the complainant, and accused No. 3 Sakharam assaulted the complainant on his back and leg, whereas accused No.1 Bhagwat gave an axe blow on the back of the complainant Prabhakar, due to which he sustained bleeding injury. He further stated that PW8 Dnyaneshwar and PW7 Gangadhar intervened into the matter. He stated that he witnessed the incident and police personnel enquired with him and recorded his statement.
26. During the cross examination, PW9 Munja stated that there is house of Police Patil in between his house and the house of Dnyanu Gaigodhane, but nobody came out of the house of Police Patil. He further stated that when he saw the incident, the accused and the complainant only were present there, and the quarrel of exchange of words continued for five minutes. He denied the suggestion that there was dark. He also denied that the complainant is his relative. He further denied that there was dispute between the complainant due to elections.
27. Coming to the medical evidence of Dr. Sheshrao Gaikwad (PW13), he stated that on 28.4.1997, he examined the complainant who was referred to him by Police Station, Purna, and he noticed following injuries on his person:
1. Lacerated wound over left scapular region in supra scapula region. Size 6x2 cms. spindle shape clear cut margins horizontal directions. Caused within six hours.
2. Contusion over right leg. Size 18x4 cms. swelling over calf.'
He stated that the age of the injuries was within six hours and injury No.1 might have been caused due to hard and sharp weapon, whereas injury No.2 might have been caused by hard and blunt object. Accordingly, he issued medical certificate which is at Exhibit 60. He also stated that injury No.1 can be caused by an axe, whereas injury No. 2 can be caused by stick. Accordingly, he stated that injury No. 1 can be caused by article Baxe and injury No.2 was possible by article A i.e. stick, which was shown to him.
28. In the cross examination, he admitted that colour of injuries is not mentioned in the medical certificate, and volunteered that it is not necessary to mention the same. However, there was no further cross examination in respect of the voluntary statement. The witness has admitted that there was overwriting over the date "28" and in the beginning, date was shown as "27" which was modified to "28", by overwriting. The suggestion was given to the witness that if a person falls from running motorcycle, aforesaid injuries are possible, but the same was denied by him. He further stated that the police did not give any history about the person referred by them to him, but only letter was given to him. The suggestion was given that he issued the medical certificate (Exh. 60) on the say of the police, but same was denied by him.
29. That takes me to the evidence of Investigating Personnel and coming to the deposition of PW10 Rangnath Rambuwa Giri, Police Head Constable, who registered the FIR (Exh.33). He stated that he was attached to Police Station Purna, as Police Station Officer, on 28.4.1997 and the complainant came to the police station and gave his report during his duty hours, and accordingly, he reduced into writing, the report of the complainant as per his say and registered the crime as CR No.53/1997 for offences punishable under Sections 326, 504, 506 read with Section 34 of I.P.C. and handed over the investigation to Shri Parihar, Police Head Constable.
30. In the cross examination, PW10 Rangnath stated that his duty hours on 27.4.1997, started at 20.00 hours which were upto 8.00 hours on 28.4.1997. He stated that at about 8.00 p.m., the complainant came to the police station, by jeep and lodged the report and accordingly, crime was registered at 2.15 a.m. He stated that the complainant had given oral report. He further admitted that the complainant is the leader of Shekari Sanghatana and is the Taluka President and due to that, he registered the crime against the accused persons. However, he stated that he does not know whether the complainant is the District President of Shetkari Sanghatana, presently.
31. That takes me to the testimony of PW11 Kishansingh Sopansingh Parihar, Police Head Constable and the Investigating Officer. He narrated the progress of the investigation, arrest of the accused persons and drawing of panchanama, as aforesaid and seizure of the articles.
32. During the cross examination, he admitted that he knew that the complainant is the District President of Shetkari Sanghatana, and also admitted that there is overwriting in figure "28" in FIR (Exh.33). Hence, suggestion was given to him that he has not investigated the crime properly at the instance of the complainant, but same was denied by the witness. It was also suggested to him that the complainant is a political leader and due to political pressure, he involved the accused persons falsely, but same was denied by him.
33. On the background of aforesaid evidence, learned A.P.P. canvassed that the prosecution has examined inasmuch as 5 to 6 eye witnesses, who witnessed the occurrence of the incident near the statue of Dr. Babasaheb Ambedkar, in front of house of PW6 Ranu, where the accused persons asked the complainant as to why he had given application to close their business of illicit liquor and thereupon, accused Nos. 2 and 3 dealt the complainant, by a stick, and accused No. 1 gave an axe blow on his leg and back and, therefore, the complainant sustained injuries on the upper part of his left side shoulder and upon the said assault, the complainant raised hue and cry, and therefore, PW3 Gangadhar Lokhande, PW6 Ranu Bhivaji and PW8 Dnyanu Lokhade came on the spot and intervened into the said quarrel. According to the learned APP, the weapons i.e. axe and stick were recovered from accused No. 1 and accused No. 3 under seizure panchanamas (Exhs. 38 and 53 respectively) in presence of PW3 Gangadhar Lokhande and PW12 Syed Munir Gulab, respectively.
34. In the said context, it is also canvassed by the learned APP that the injuries sustained by the complainant correspond with the said weapons i.e. the axe and the stick, and the medical evidence i.e. testimony of PW13 Dr. Sheshrao Gaikwad and the injuries mentioned in the injury certificate issued by him at Exh. 60, also correspond with the theory of the prosecution and above referred weapons. Moreover, learned APP also submitted that the ocular evidence of the eye witnesses i.e. PW1 complainant Prabhakar himself, PW4 Baburao Chavan, PW6 Ranoji Gaigodhane, PW7 Gangadhar Gaigodhane, PW8 Dnyanoba Lokhande and PW9 Munja Kadam, and also medical evidence of PW13 Dr. Sheshrao Gaikwad and injury certificate issued by him at Exh.60, corroborate and correspond with each other, and therefore, although there are some minor variances in the evidence of the witnesses, the eye witness account of the aforesaid eye witnesses is required to be accepted and deserves to be believed, since the said ocular and medical evidence connects the accused with the crime. and consequently, the accused persons deserve to be convicted and sentenced, if not for offence under Section 326 of IPC, but at least for offence under Section 324 of I.P.C., by allowing the appeal, partly, to that extent.
35. Shri A.S.Doke, learned counsel for the respondentsaccused submitted that the complainant filed false complaint against them, due to political rivalry since the complainant had contested the election for M.L.A. According to the learned counsel, in fact, no incident had taken place, as alleged, but the accused have been implicated in the said case, falsely. Learned counsel also submitted that there are glaring variances in the eye witness account of the testimonies of the eye witnesses, and therefore, the learned trial court acquitted the accused persons, rightly, and hence, no interference therein is warranted, in the appellate jurisdiction. It is also canvassed by learned counsel for respondentsaccused that the recovery of the alleged weapons from accused No. 1 and accused No. 3, namely, axe and stick respectively, is doubtful and the said recovery has not been caused under memorandum of panchanama as required under Section 27 of the Indian Evidence Act, and hence, recovery of the said weapons cannot be tacked with the said respective accused. It is further canvassed by the learned counsel for the respondents accused that neither the medical certificate (Exh.60) nor evidence of PW13 Dr. Sheshrao, corresponds with the testimonies of the eye witnesses, and there are omissions and contradictions in their testimonies, and as such, there is variance in the ocular and the medical evidence, and hence, the prosecution has failed to establish nexus between the ocular evidence, medical evidence and the alleged crime, so as to connect the accused therewith.
36. It is further canvassed by learned counsel for the respondentsaccused that there is delay in lodging the FIR, because although the incident allegedly occurred at about 10.00 p.m. to 10.30 p.m. on 27.4.1997, the FIR is lodged at about 2.15 a.m. on 28.4.1997 and the prosecution has not given any plausible explanation for the same. Moreover, no copies of the seizure panchanamas (Exh. 38 and 53) were given to the respective accused persons i.e. accused Nos. 1 and 3, nor their signatures were not obtained thereon, and therefore, said recovery/seizure panchanamas cannot be construed as incriminating evidence against the accused persons. Besides that, it is submitted that panch to the spot panchanama (Exh.36), namely, PW2 Uttam Chavan, is the brother of the complainant, and therefore, his testimony and the spot panchanama come under the clouds of suspicion.
37. Apart from that, it is submitted by the learned counsel for the respondents that the view adopted by the learned trial court while acquitting the accused persons, after scrutinizing and analyzing the evidence on record, is a possible view to be adopted and no perversity is found therein, and hence, no interference therein is called for, in the appellate jurisdiction. Moreover, it is also submitted that there is no flaw in the reasoning adopted by the trial court and since the recovery of weapons and the eye witness account are shaky, there is no question of convicting the accused persons, even for lesser offence under Section 324 of IPC as canvased by the prosecution, and consequently, there is no question of allowing the appeal, even partly, to that extent, and the learned counsel for the respondents further submitted that the present appeal deserves to be dismissed.
38. I have perused the oral, documentary and medical evidence adduced and produced by the prosecution, on record, as well as perused the impugned judgment and heard the learned counsel for the parties, anxiously, and having the comprehensive view of the matter, I am inclined to accept the submissions advanced by the learned counsel for the respondentsaccused, since PW10 Police Head Constable Rangnath Giri, who registered the FIR (Exh.33), has categorically admitted in his cross examination that the complainant is the leader of Shetkari Sanghatana and Taluka President and due to that he registered the crime against the accused. Moreover, PW11 Police Head Constable Kishansing Parihar, Investigating Officer, also stated in his cross examination that it is true that he knew the complainant and that he is the President of Shetkari Sanghatan. Moreover, as regards the FIR (Exh.33), delay caused in lodging the same, PW11 Kishansing Parihar admitted in cross examination that there is overwriting in figure '28' of the date, and as is the case of the prosecution itself, although the incident occurred at about 10.p.m. to 10.30 p.m. on 27.4.1997, FIR came to be lodged at about 2.15 a.m. on 28.4.1997 i.e. four hours after the incident, and that too with aforesaid overwriting in the date, and the prosecution has not given plausible and convincing explanation for the said delay, and therefore, suspicion is created in that respect. Moreover, it is also material to note that PW1 complainant also admitted in his cross examination that there was police chowki at village Chudava, of Police Station, Purna, but he did not go to the said chowki and reason given by him for the same is that there was nobody present in the said chowki in the night time. He also admitted that he has not produced any application or record, for the alleged illegal activities of the accused persons. Hence, it is apparent that the complainant did not make any efforts to lodge complaint immediately at the police chowki, Chudava, and the reason given therefor, namely, that there was nobody in the said chowki at night time, is not digestible, and accordingly, cumulative effect of the same is that there was delay in lodging the aforesaid FIR, which has not been explained by the prosecution, with convincing and cogent reasons.
39. Moreover, it appears that PW2 Uttam, the panch to the spot panchanama (Exh.36) is the cousin brother of the complainant, as admitted by him in the cross examination. However, prosecution has not examined another panch, namely, Baburao. Apart from that, it also appears from the testimony of PW2 Uttam and the contents of spot panchanama (Exh.36), that nothing was seized thereunder, and hence, said piece of evidence cannot be construed as incriminating evidence against the accused persons.
40. Coming to the seizure panchanamas (Exhs. 38 and 53) which were recorded in the presence of PW3 Gangadhar Lokhande and PW12 Syed Munir Gulab, it is evident that the said panchanamas were not conducted under Section 27 of the Indian Evidence Act, and the recoveries/seizures of alleged weapons i.e. axe and stick from accused Nos. 1 and 3 respectively, have not been made at the instance of the said accused persons, in pursuance of their voluntary statements, and therefore, such recovery of the weapons cannot be construed as the incriminating piece of evidence against the said accused persons. Pertinently, signatures of accused Nos. 1 and 3 were not obtained on the said seizure panchanamas (Exhs. 38 and 53), and even copies thereof were not given to them, and therefore also, there are lapses and laches in drawing the said panchanamas, and therefore, the same cannot be construed as concrete incriminating piece of evidence against the accused persons.
41. As regards the eye witness account, firstly, there is variance in respect of timing of occurrence of the incident, since PW1 complainant Prabhakar, PW4 Baburao and PW6 Ranoji stated that the incident had taken place at about 10.00 p.m. on 27.4.1997, whereas PW8 Dnyanoba and PW9 Munjaji have stated that the said incident had occurred at about 8.00 p.m. to 8.30 p.m. on 27.4.1997. Pertinently, there is variance in the testimonies of eye witnesses in respect of blows given by accused persons on the part of the body of the complainant, such as, PW1 stated that accused Nos. 2 and 3 dealt him by stick, and accused No.1 gave him axe blow on his leg and back and he suffered injury on upper part of his right shoulder. As against that, PW4 Baburao, alleged eye witness, stated in his deposition that accused No.3 Sakharam dealt a stick blow on the leg of the complainant and accused No. 1 gave an axe blow on the back of the complainant, as well as accused No.2 Dnyaneshwar assaulted the complainant, whereas PW6 Ranoji deposed that accused No.3 assaulted by stick to complainantPW1, and accused No.1 Bhawat assaulted the complainant, but he could not tell the weapon used by accused No. 1, but further stated that accused No.1 Bhagwat assaulted the complainant by an axe and the complainant sustained axe blow on his back, and pertinently, PW6 stated that accused No. 2 did not assault PW1 complainant, in his presence. PW6 Gangadhar deposed that accused No. 3 Sakharam assaulted the complainant by stick, on his right leg, and later on accused No.1 Bhagwat came on the spot and assaulted the complainant on his back, and he further stated that there was dim light in his house, whereas PW8 Dnyanoba stated in his deposition that accused No.2 caught hold of the complainant, accused No. 3 had stick in his hand and accused No.1 was armed with an axe, and accused No. 3 assaulted the complainant on his leg, by stick, whereas accused No.1 gave an axe blow on right shoulder of the complainant, and pertinently, he stated in the cross examination that at the time of the incident, there was dark, but in front of the house of PW6 Ranu, there was light, whereas PW9 Munja deposed that accused No.2 Dnyaneshwar caught hold the complainant and accused No.3 Sakharam assaulted the complainant on his back and leg, and accused No. 1 Bhagwat dealt an axe blow on the back of the complainant PW1 Prabhakar, as a result of which he sustained the bleeding injuries.
42. Keeping in view the aforesaid testimonies of the eye witnesses and coming to the medical evidence of PW13 Dr. Sheshrao Gaikwad, he stated that the complainant Prabhakar had sustained two injuries, namely, (i) lacerated wound over left scapular region and (ii) contusion over right leg. He stated that age of the injuries was within six hours and injury No.1 might have been caused due to hard and sharp weapon, and injury No. 2 might have been caused by hard and blunt object, and accordingly, he issued the injury certificate (Exh.60). PW13 Dr. Sheshrao admitted in the cross examination that there is overwriting on date in the injury certificate, as, in the beginning it was "27", but subsequently, it was overwritten as "28". Suggestion was given to the Medical Officer that if a person falls from running motorcycle, both the injuries mentioned in the injury certificate (Exh.60) were possible, but same was denied by him. Further, injury certificate also discloses that the complainant sustained lacerated wound on left scapular region by sharp weapon and the said injury is simple in nature, and he also sustained contusion over right leg, by hard and blunt object, and the said injury was also simple in nature. Thus, comparing the medical evidence with the eye witness account, there appear to be vital variances in the testimonies of the eye witnesses, and also in respect of the part of the body of the complainant on which he sustained injuries, and hence, depositions of such eye witnesses come in doldrums.
43. Moreover, PW4 Baburao also admitted in the cross examination that the complainant is a leader of Shetkari Sanghatana and at the relevant time, he was Taluka President and now he is District President of the said Sanghatana. He also stated that the complainant wanted to contest the election from Basmant Assembly constituency. Hence, as admitted by PW10 Police Head Constable Rangnath Giri, it appears that complainant being the leader of Shetkari Sanghatana and Taluka President of the same, the complaint had been registered against the accused persons, to implicate them in the said case, falsely.
44. Besides that, there are variances in the testimonies of the prosecution witnesses, even in respect of the distance between the statue of Dr. Babasaheb Ambedkar and house of PW6 Ranu, as PW1 stated in the cross examination that the said distance is of 200 ft. to 300 ft. , whereas PW6 Ranu stated the said distance to be 100 ft. to 125 ft., as well as there are omissions, contradictions and discrepancies in the testimonies of the witnesses, more particularly in the testimonies of eye witnesses, and therefore, it is amply clear that the prosecution has failed to prove the charges levelled against the accused, beyond reasonable doubt, and hence, the proposition putforth by the learned A.P.P. that the accused be convicted, at least for offence under Section 324 of IPC, if not for offence under Section 326 of IPC and allow the appeal partly, to that extent, also cannot be accepted.
45. In the circumstances, after scrutinizing and analyzing the evidence on record, the view adopted by the trial court, while acquitting the accused persons, is a possible view and same does not appear to be perverse and hence, no interference therein is warranted, in the appellate jurisdiction.
46. Accordingly, present appeal, which is sans merits, stands dismissed.