2006 ALL MR (Cri) 2488
IN THE HIGH COURT OF JUDICATURE OF BOMBAY(AURANGABAD BENCH)
A.V. MOHTA, J.
Babu S/O. Tatyarao Kshirsagar Vs. Bhikaji S/O. Marotrao Kshirsagar & Ors.
Criminal Revision Application No.383 of 1998
30th June, 2006
Petitioner Counsel: Shri. P. N. SONPETHKAR
Respondent Counsel: Shri. SHAILESH S. CHAPALGAONKER,Shri. S. D. KALDATE
(A) Evidence Act (1872), S.3 - Appreciation of evidence - Interested witness - Relatives of injured witness can be relied upon, however the testimony of such witnesses should be credit worthy - Their testimony should connect the link and/or complete chain of circumstances to support the prosecution case and not otherwise. (Para 10)
(B) Criminal P.C. (1973), S.154 - First Information Report - F.I.R. need not be in detail. (Para 10)
JUDGMENT :- The petitioner/complainant, being aggrieved by the reversal order dated 18.9.1998, passed by the learned Additional Sessions Judge, Parbhani, whereby, all the accused have been acquitted of the offences punishable under Sections 147, 341 and 326 r/w 149 of the Indian Penal Code.
2. As per the prosecution, on 26.6.1985 at about 7.00 p.m., the petitioner/complainant was going towards village purna. All the accused persons assaulted the petitioner. The accused were armed with sticks and axe. the complainant received severe injuries, which resulted into amputation of his right leg. He lodged complaint with hatta police station at about 11.00 hours. The offence was registered accordingly.
3. The prosecution has led evidence of 16 witnesses, which include, complainant PW-1, Taramati, PW-4 (eye witness) - sister of complainant, Sadashiv PW-5 brother of the complainant, Champatrao PW-7 - bullock cart driver who shifted the injured complainant, Rukhmabai PW-9 - mother of complainant, Mirabai PW-11 (eye witness), Balasaheb PW-13 - panch witness to the spot, Janardhan PW-14 - PSI/IO, Dr. Babasaheb PW-15 and Prakash PW-16 - Medical Officers. No defence witness was examined.
4. The Judicial Magistrate, First Class, Basmath (J.M.F.C.), by a judgment and order dated 5.11.1992, had convicted all the accused. The learned Sessions Judge, Parbhani, in Criminal Appeal No.80 of 1992, by the judgment and order dated 18.9.1998 allowed the appeal and reversed the judgment and order of conviction and acquitted all the accused.
5. The Apex Court in case of K. Chinnaswamy Reddy Vs. State of A. P. reported in AIR 1962 SC 1788, while dealing with Section 439 of Criminal Procedure Code (Cr.P.C., 1898), Now Section 401 of Cr.P.C., observed as under:
"It is true that it is open to a High Court in revision to set aside an order of acquittal even at the instance of private parties, though the State may not have thought fit to appeal; but this jurisdiction should in our opinion be exercised by the High Court only in exceptional cases, when there is some glaring defect in the procedure or there is manifest error on a point of law and consequently there has been a flagrant miscarriage of justice.
".....These cases may be; where the trial Court has no jurisdiction to try the case but has still acquitted the accused, or where the trial Court has wrongly shut out evidence which the prosecution wish to produce, or where the appeal Court has wrongly held evidence which was admitted by the trial Court to be inadmissible, or where material evidence has been overlooked either by the trial Court or by the Appeal Court, or where the acquittal is based on a compounding of the offence, which is invalid under the law."
"From the bare perusal of the impugned order, it would appear that the High Court upon reappraisal came to a conclusion different from the one recorded by the appellate court. It is well settled that in revision against acquittal by a private party, the powers of the Revisional Court are very limited. It can interfere only if there is any procedural irregularity or material evidence has been overlooked or misread by the subordinate court. If upon reappraisal of evidence, two views are possible, it is not permissible even for the appellate court in appeal against acquittal to interfere with the same, much less in revision where the powers are much narrower. No procedural irregularity has been found by the High Court in the order of the Sessions Court whereby the appellant was acquitted. Therefore, we are of the view that the High Court was not justified in interfering with the order of acquittal in exercise of its revisional powers, as such the same is liable to be interfered with by this Court."
7. The learned advocate appearing for the complainant has strongly relied on the contents of the complaint dated 26.6.1985 read with the evidence of the injured complainant PW-1 and an eye witness Taramati PW-4 (minor) - sister of the complainant. Another eye-witness Mirabai PW--11, whose name appeared in the First Information Report F.I.R., was declared hostile. Taramati PW-4's name was not indicated in the F.I.R.. Other witnesses, though named in the F.I.R., were not examined by the prosecution. The Appellate Court has rightly considered the evidence of these two witnesses in its proper perspective. Mirabai PW-11 was declared hostile and in her cross-examination also nothing could be extracted by the prosecution.
8. The minor sister Taramati PW-4, who is styled as an eye witness to the incident, as noted, was not named in the F.I.R.. The evidence of Taramati PW-4 even otherwise is not supporting; firstly by the F.I.R and secondly even by the evidence of the injured complainant Babu PW-1. The omission of the name of this eye witness Taramati PW-4, in the facts and circumstances of the case, is very important. The named Mirabai PW-11, as declared hostile, as she was not supporting the complainant's case, is also the material, to disconnect the chain of circumstances and further to support the case of the complainant Balu PW-1. There was no other witnesses, who could support the incident and/or actual assault by the accused. The requirement is that the prosecution should put forth and prove the case and actual role played by the accused, beyond reasonable doubt. In the present case, in view of this missing link itself, it is difficult to accept the case of the prosecution. The reversal order by the Appellate Court, therefore, cannot be said to be perverse or contrary to the record.
9. There was no justification and/or satisfactory explanation put forth by the prosecution of non-examination of the independent witnesses, though named in the F.I.R.. He named more than 4 persons, who, according to the complainant, on hearing the shouts, came and rescued the accused. The Trial Court, however, overlooked this fact of non-examination of eye witnesses named in the F.I.R., as rightly observed by the Appellate Court.
10. It is settled that the F.I.R. need not be in detail. The relatives of the injured witness can be relied upon, however the testimony of such witnesses should be creditworthy, their testimony should connect the link and/or complete chain of circumstances to support the prosecution case and not otherwise.
11. In the present case, as rightly observed by the Appellate Court, basically various contradictions marked 'A' at Exh. 61 in reference to Taramati PW-4, which have been duly proved by the Investigating Officer, further show that she was at home and never witnessed the incident even from the distance of 25 ft. it as contended. She did not accompany the injured complainant at the relevant time. This improvement, therefore, has rightly been noted against the prosecution. The learned Magistrate's reliance on the testimony of Taramati PW-4 and her mother Rukhmabai PW-9 is not sufficient to convict the accused.
12. The mother of the complainant Rukhmabai PW-9 arrived at the place of incident and found injured Babu lying on the spot. Champatrao PW-7, who was a bullock cart driver and who carried the injured to the Primary Health Centre, in his evidence nowhere supported the case of Rukhmabai PW-9 that injured complainant was found by her at the place of incident and he told her the names of all the accused. On the contrary, in his testimony he stated that they were not discussing anything about the incident. Undisputably, no blood stains and such sofl were found on the spot or seized by the prosecution.
13. The axe and the sticks were duly recovered but those articles were not sent for the medical examination. Even the medical injuries nowhere match with the injuries described and/or narrated by he complainant. The Appellate Court further observed that the evidence of Dr. Babasaheb PW-15 does not corroborate the testimony of the complainant in reference to the number of injuries in view of the constant blows by an axe. Dr. Prakash PW-16, in his evidence has stated that the leg of the complainant was amputed because of "ischaemla gangrene". The positive and supporting evidence connecting the role played by the accused of assault by an axe on the leg in question, as alleged, is totally missing.
14. Apart from that, the undisputed fact of enmity between the parties further raises various doubts in the prosecution case basically in absence of any independent witness to support the complainant PW-1's testimony.
15. Taking all this into account, in the facts and circumstances of the case and in view of the above law, I am not inclined to interfere with the order of acquittal passed by the learned Additional Sessions Judge, Parbhani.