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1 B 27 HMT 63 M 04 Ar 62 SHNJ 37 IV 2 I
1 B 27 HMT 63 M 04 Ar 62 SHNJ 37 IV 2 I
255/2008
1 Exh.65
Received on :08 /09/2008
Registered on :08/09/2008
Decided on :07/ 09/2015
Duration :06Y 11M 30D
IN THE COURT OF JUDICIAL MAGISTATE FIRST CLASS
BARAMATI
(Presided over by S. J. Patil)
R.C.C No. 255/2008 Exh. No. 65
The State of Maharashtra,
Through P. S.O. of
Baramati Taluka Police station,
Tal.Baramati.Dist.Pune PROSECUTION
V e r s u s
1. Bapurao Babanrao Solankar,
Age: 25 yrs , Occ: Agriculture,
2. Indubai Babanrao Solankar, ACCUSED
Age : 50 yrs, Occ: Household
3. Babanrao Sahebrao Solankar, (abated)
Age : 50 yrs, Occ: Agriculture,
All R/o : Solankarvasti, Zhargadwadi,
Tal. Baramati, Dist. Pune.
R.C.C.No. 255/2008
2 Exh.65
Offences punishable under section 323, 324,
504, 506 R/W 34 of Indian Penal Code.
____________________________________________________________
Appearance :
Smt. N. P. Kuchekar A.P.P. for the State.
Shri. Amar Kale Ld. Advocate for the Accused.
____________________________________________________________
J U D G M E N T
( Delivered on 07/09/2015)
1. The accused stands charged with the offences punishable
under sections 323, 324, 504 and 506 read with section 34 of the
Indian Penal Code.
chilly powder and threw it in the eyes of the informant Haribhau
and P.W.5 Nanasaheb. In sequel thereto the informant Haribhau and
P.W.5 Nanasaheb sustained unbearable irritation in their eyes.
Thereafter taking the benefit of it, accused No.1 assaulted the
informant P.W.2 Haribhau and P.W.5 Nanasaheb by means of sickle
and handle of axe and caused injuries to them on the count of
previous altercation at Songaon. The Accused Nos.1, 2 and 3
thereafter intentionally insulted by abusing them and also
intimidated the informant Haribhau and P.W.5 Nanasaheb by
threatening them. The informant Haribhau and P.W.5 Nanasaheb
became afraid and left the house of the accused. They narrated the
incident to their relatives. Thereafter, they went to Baramati Taluka
Police Station, where the informant P.W.2 Haribhau lodged First
Information Report against the accused. On the basis of report, a
crime was registered with Baramati Taluka Police Station vide C.R
No. 38/2007.
3 The investigation was conducted by A.S.I., D. Y. Shinde.
He visited the place of the incident and prepared its panchnama
(Exh.53). He recorded the statement of the witnesses. The sickle and
handle of axe used as weapon of offence were recovered on the basis
of the information elicited from the accused No.1 pursuant to his
statement under section 27 of the Evidence Act. In due course, the
investigation officer A.S.I. D.Y. Shinde collected medical certificate
from Rural Hospital, Rui, Tal. Baramati, Dist. Pune. Finally, after
completion of the investigation, I.O., A.S.I. D.Y. Shinde presented the
final report u/s 173 of the Cr.P.C in the Court .
R.C.C.No. 255/2008
4 Exh.65
4. The accused No. 3 bade farewell to his terrestrial terrain
and left for heavenly abode during the pendency of trial and so
proceeding against him stood abated.
R E A S O N S
POINT NO. 3.
8. The accused are charged for the offence punishable
under Section 504 of the Indian Penal Code. The informant P.W.2
Haribhau and P.W.5 Nanasaheb have simply stated that accused had
abused them. However, in the entire evidence before the court they
had not uttered a single word in their testimony about the exact
abuses hurled at them by the accused. In absence of actual words
uttered against the witnesses, it is difficult to hold that the abuses
hurled could have caused provocation, intending or knowing it to be
likely that such provocation would cause them to break the public
peace or to commit any other offence. Therefore, I hold that the
prosecution has failed to prove the offence punishable under Section
504 R/w 34 of I.P.C against accused persons. Hence the point no.3 is
answered in the negative.
POINT NO. 4.
9. The informant P.W.2 Haribhau and P.W.5 Nanasaheb has
nowhere testified that the accused had threatened them. Therefore,
in absence of evidence of the witnesses in respect of actual threats
and manner in which threats were given to them by accused
persons, it cannot be said that accused had committed the offence of
criminal intimidation punishable under section 506 R/w 34 of the
Indian Penal Code. Hence, I answer point No.4 in the negative.
R.C.C.No. 255/2008
7 Exh.65
POINT NOS. 1 & 2 :
10. Both of these points dealt with simultaneously to avoid
the repetition of the discussion of the evidence which is common for
them.
She found the following injuries on the person of Haribhau:
A] Conjunctive congenon and watering in both eyes, vision was
normal.
B] Incised wound on back in middle vertically, 40 x 0.2 cm.
C] Incised wound on back left side vertically middle, 20 cm. x
0.03cm.
D] Incised wound on left side, 8 cm x 0.2 cm. vertical.
E] Incised wound on left side of back laterally,
F] Incised wound on left arm back side, 15 cm. x 02 cm
horizontally.
G] Superficial cut on anterior aspect of shoulder, 10 cm x 0.1 cm
vertically
H] Superficial cut on anterior aspect of arm, 2 cm x 0.1 cm.
I] Contusion on left side of temporal region, 1 cm x 1 cm.
She also noted the following injuries on the person P.W.5 Nana
Mote :
1 Conjunctive congenon and watering in both eyes, vision was
normal
R.C.C.No. 255/2008
8 Exh.65
2 Incise wound skin deep, 8 x0.2 cm on left side of chest, 2 cm.
from mid line vertically.
3 Incised wound skin deep , 15 x 0.1 cm. right arm anteriorly
obliquely placed.
4 Incised wound skin deep, 10 x 0.1 cm. left side of abdomen.
5 Superficial cut, 5 x 0.1 cm. on left inguinal region vertical.
6 Too superficial incised wound, 2 x 0.1 cm. skin deep, 1x 0.1
cm. skin deep, each on upper 1/3 rd of right forearm,
horizontally.
7 Superficial incised wound, 5 x 0.1 cm. on left arm lower half
laterally.
8 Incised wound upper half of left arm, 15 x 0.2 cm, posterior
laterally.
9 Incised wound in right scapular region on back 5 in number,
1 x 0.1 cm, 3 x 0.1 cm, 1x 0.1cm, 2 x 0.1 cm. 2 x 0.1 cm,
superficial.
10 Incised wound on right abdomen,1x0.1cm,vertically,
superficial.
11 Superficial cut on right index finger deep.
accused No. 1 met and invited them to his house for cup of a tea.
The Informant P.W.1 Haribhau and P.W.5 Nanasaheb accepted his
offer and went along with him on motorcycle. After initial hospitality
by accused No. 2, they waited for a tea. After some time accused
No.2 came back and threw the chilly powder in their eyes. At the
same time accused No.1 assaulted them by means of sickle and stick
giving its blows on their chest, shoulder and back. Thereafter P.W.2
informant and P.W.5 Nanasaheb left the place of incident and
narrated the assault made on them by the accused to the people
gathered at locality of Borkarvasti. Thereafter, they went to Baramati
Taluka Police station and lodged First information Report against the
accused. The police referred them to Government Hospital, Rui for
medical examination. After receiving the medical certificate, the first
information report was lodged against the accused. The FIR Exh.34
was proved in the evidence of P.W.1 Haribhau.
13 P.W.3 Machhindra Tingale testified that the date of
incident at about 1100p.m. he was called by Navnath Borkar and
Gopinath Borkar at their house where he found that informant P.W.2
Haribhau and P.W.5 Nana sustained injuries on their person. He
learnt that the accused No. 1 and 2 assaulted them. The evidence of
P.W.3 Machhindra is not relevant and admissible as it is hearsay in
nature and even it is not covered by the principle of res gaste
envisaged under section 6 of the Evidence Act.
14 The Pancha witness P.W.4 Appa Shinde deposed that he
and other pancha Nitin Mulmule were called by the police on
03052007 to carry out the recovery panchanama (Exh.37). The
R.C.C.No. 255/2008
10 Exh.65
15 The investigating officer P.W.7 D.Y. Shinde gave details
of the investigation. He stated that he has drawn the spot
panchanama at Exh.53, collected the medical certificate and
recovered the weapons used in the offence the sickle and the stick
pursuant to the statement of the accused. Finally he presented the
charge sheet against the accused.
16 At the first blush and on plain reading of the evidence of
informant P.W.2 Haribhau, P.W.5 Nanasaheb and P.W.6 Medical
officer Manjusha Joshi one can broadly say that prosecution has
substance. But ld. Advocate Amar Kale for the accused rightly drew
my attention towards the material infirmities, lacuna and
discrepancies in the evidence of the afore stated witnesses examined
by the prosecution to prove the case against the accused. The
following are the vital infirmities in the evidence of the informant
P.W.2 Haribhau and P.W.5 Nanasaheb with the medical evidence
which bridle me from placing implicit reliance upon their testimony.
1] The injured Haribhau and P.W.5 Nanasaheb stated
that accused assaulted them by means of sickle and stick.
P.W.5 Nanasaheb also deposed that accused assaulted them by
means of stick. But the injuries as certified by medical officer
R.C.C.No. 255/2008
11 Exh.65
are possible only due to the blow of sickle (article A )and not
due to the stick (article B). It may be noted that all injuries
described in injury certificates are incised wounds.
Thus the medical evidence does not prove the prosecu
tion version. The doctor P.W.6 Manjusha says that the injuries could
be possible by thick and pointed needle. She opined that she did not
find any ruptures and stab injuries on both the patients. The medical
certificate does not prove any injury by stick. The unfortunate
quandary of this medical evidence has deprived me to consider the
evidence which might have been of great value on the point of trust
worthiness of the prosecution case. Therefore, the forgoing infirmity
in the evidence of informant Haribhau, P.W.5 Nanasaheb and medi
cal evidence creates doubts about the veracity of the prosecution
case. Needless to state the evidence of P.W.2 Haribhau and P.W.5
Nanasaheb cannot be stated to be trustworthy and relied upon
without corroboration from other evidence.
17 Ld. advocate Shri. Amar Kale for the accused vehemently
argued that the prosecution has not explained any motive on the
part of the accused for the commission of any offence. No doubt the
prosecution has not stated any motive for the crime like previous en
mity between the parties or any dispute over any landed property or
for whatsoever reason. It may be stated that as per the principle laid
down under section 8 the Act motive is nodoubt an important as
pect of evidence but it is very difficult to prove it as mental state of
affairs of the accused can not be seen from outside. Motive is useful
evidence only when it is apparent that the crime took place for a
particular motive. The question of motive is vital when a case is
based on no direct evidence and the Court is to infer it from the giv
en circumstances. In these kinds of cases inadequacy of motive can
be pleaded as defense if motive is made doubtful then it goes in
favour of the accused. But the prosecution is not bound to prove that
R.C.C.No. 255/2008
13 Exh.65
motive was there when cogent evidence has been supplied. In such
cases absence of inadequacy of motive becomes of very small impor
tance. The legal position regarding proof of motive as an essential
requirement for bringing home the guilt of the accused is fairly well
settled by a long line of decisions of this Court. These decisions have
made a clear distinction between cases where prosecution relies
upon circumstantial evidence on the one hand and those where it re
lies upon the testimony of eye witnesses on the other. In the former
category of cases proof of motive is given the importance it deserves,
for proof of a motive itself constitutes a link in the chain of circum
stances upon which the prosecution may rely. Proof of motive, how
ever, recedes into the background in cases where the prosecution re
lies upon an eyewitness account of the occurrence. That is because
if the court upon a proper appraisal of the deposition of the eyewit
nesses comes to the conclusion that the version given by them is
credible, absence of evidence to prove the motive is rendered incon
sequential. Conversely even if prosecution succeeds in establishing a
strong motive for the commission of the offense, but the evidence of
the eyewitnesses is found unreliable or unworthy of credit, exis
tence of a motive does not by itself provide a safe basis for convict
ing the accused. That does not, however, mean that proof of motive
even in a case which rests on an eyewitness account does not lend
strength to the prosecution case or fortify the court in its ultimate
conclusion. Proof of motive in such a situation certainly helps the
prosecution and supports the eye witnesses. See Shivaji Genu Mohite
vs. The State of Maharashtra, (1973) 3 SCC 219, Ha
ri
Shanker v.
State of U.P . (1996) 9 SCC 40 and State of Uttar Pradesh v. Kishanpal
and Ors. (2008) 16 SCC 73.
R.C.C.No. 255/2008
14 Exh.65
18. In present case in hand the prosecution has led direct
evidence of two victims i.e P.W.2 Haribhau and P.W.5 Nanasaheb
and the prosecution relies upon account of the occurrence of these
eye witnesses. So the inadequacy of motive is of no consequence.
Therefore, I do not find substance in his submission that the absence
of motive has caused any dent in the prosecution case..
19. Be that as it may, there is special reason in this case why
I feel that the testimony of P.W.2 Haribhau and P.W.5 Nanasaheb
cannot be accepted at their face value. I shall first set out certain
facts which are either admitted or are, in my opinion, established
beyond doubt. The prosecution case is that the informant Haribhau
and P.W.5 Nanasaheb were invited at accused house for tea and then
they were assaulted by the accused. No one would call other person
for tea and then assault without any reason or motive behind it.
Even other way round no one would go to the house of enemy and
risk for assault on him. The said facts itself create doubt in the mind
about genuineness of the prosecution version for want of reason
behind such assault that after invitation for a cup of tea. In such
circumstances the evidence of informant P.W.2 Haribhau and P.W.5
Nanasaheb is not at all free from the doubt and requires strong
corroboration before accepting it .
20 Ld. Advocate Amar Kale for accused argued that the
evidence of pancha witness P.W.4 can not be relied on as the said
articles were brought by the police from Baramati and they were not
recovered in presence of the panch witness. I find substance in the
submission of Ld. advocate for accused for the reason that the
R.C.C.No. 255/2008
15 Exh.65
21 Unfortunately another pancha witness P.W.1Manik Masal
did not supported the prosecution case. The spot panchanama was
not proved by his evidence. He turned hostile and testified that the
panchanama of the place of occurrence was not drawn in his
presence.
22. The ld. Advocate Amar Kale for the accused took a
strong defence to disbelieve the prosecution case. He drew my
attention towards the cross examination of the investigation officer,
who admitted that the accused no.1 is having disability 60%. Thus
the accused no. 1 is the person of disability and accused No.2 is a
45 years old lady. That being so it is rather a debatable question to
ponder whether they can cause hurt to the informant Haribhau and
P.W.5 Nanasaheb as testified by them in their evidence. This fact
itself is appealing to my mind to disbelieving the prosecution version
of assault by an infirm person having sixty percent disability and a
woman aged more than 45 years. This to my mind is a most,
impressive feature which is not lightly to be brushed aside.
23. It is true that the accused were three in numbers and it
R.C.C.No. 255/2008
16 Exh.65
is true initially accused No.2 threw chilly powder in the eyes of the
P.W.2 Haribhau and P.W.5 Nanasaheb But then there are other
reasons to throw doubt upon their words. Those reasons, for which,
I am not inclined to rely on the evidence of the informant Haribhau
and Nanasaheb are the following:
Second reason is that the informant Haribhau and pw5
Nanasaheb deposed that the accused no. 2 gave a glass of water and
went to make the tea for them. But when she returned she had
thrown chilly powder in their eyes. But prosecution has not seized
the chilly powder and other utensils from the place of the
occurrence.
R.C.C.No. 255/2008
17 Exh.65
been occurred by the fall of a person on thorny bushes.
25 The criminal jurisprudence, requires a high standard of
proof for imposing punishment to an accused. In this regard reliance
has been placed on the decision in their Lordships of the Bombay
high Court in the case of Sukhdev s/o Bhimrao Hastapure vs. State of
Maharashtra reported in 2002 ALL MR (Cri) 2385.
In this case, it has
been held that
“Accused cannot be convicted merely on the ground of suspi
cion. It is the duty of prosecution to adduce evidence in such a manner
as to leave no doubt that accused and accused alone was responsible for
the offence charged against the accused.”
26 Considering the four broad reasons noted in Para 16 to
doubt the prosecution case, I am of the view that the prosecution
case is not free from doubts though it can be said that the P.W.2
Haribhau and P.W.5 Nanasaheb are not deposing false. But still due
to absence of strong corroboration to their evidence I find that the
case against accused is "not free from reasonable doubt" because the
possibility of "he being falsely implicated in the case on account of
enmity cannot be excluded”.
27 These reasons stated in Para 23 accord with the defence
story of their false implication in crime. I have therefore to examine
the evidence of the prosecution with more than usual care before re
lying upon it. This means that the defence of one of the accused of
handicappedness and that of womanhood of other accused must be
treated like any other piece of evidence coming from the mouth of a
R.C.C.No. 255/2008
19 Exh.65
witness and matters in favour of the accused must be viewed with as
much deference and given as much weight as matters which told
against him. Because of the presumption of innocence in their favour
even when they are not in a position to prove the truth of their story,
their version should be accepted if it is reasonable and accords with
probabilities unless the prosecution can prove beyond reasonable
doubt that it is false. I feel that this fundamental approach could not
be and should not be ignored in this case.
28 That being so, I feel that a reasonable and probable de
fense likely to be true is pitted against a weak and vacillating prose
cution case. In sequel it is bound to raise reasonable doubts of which
the accused must get the benefit. Thus to my mind, this is a fit case
wherein the accused deserves benefit of doubt. Consequently, I hold
that the prosecution has not been able to bring home beyond reason
able doubt the guilt of the accused for the offence punishable U/sec.
323 and 324 of the Indian Penal Code. Therefore the point Nos. 1
and 2 are answered in the negative.
In the result I pass the following order.
O R D E R
1. Vide section 248(1)of the Cr.P.C the accused is acquitted of the
offence punishable u/s 323,324, 504, 506 R./W. 34 of the Indian
Penal Code.
2. After the expiry of the appeal period:
a) The Muddemal property a stick being worthless be
destroyed
R.C.C.No. 255/2008
20 Exh.65
b) The sickle being the agricultural weapon be sold in the
auction.
3. The accused shall furnish the PR Bond of Rs.5000/ and the
surety of the like amount each to appear before the next
appellate court.
4. The bail bonds of the accused are cancelled.
Sd/
Date : 792015 ( S. J. Patil)
Judicial Magistrate First Class,
Baramati, Dist. Pune.
I affirms that the contents of this P.D.F file judgment are same word
for word as per original judgment.
Name of Steno : M.M.Patil
Court name : Hon'ble S. J. Patil 5th Jt.C.J.J.D. and J.M.F.C.Baramati
Date: 07.09.2015
Judgment signed by presiding officer on:07.09.2015
Judgment uploaded on : 30.09.2015