Dismissed

Prakash Hanmant Jadhav v. Vishal Ganpati Salunkhe and Ors.

Bombay HC5 Sept 2007APEAL/185/1996

Case brief

AI extract

What is this about?

In an appeal against acquittal, the High Court dismissed the complaint appeal regarding an assault dispute. The court held that the trial court's view was reasonably possible as the corroborating witnesses did not seem to have witnessed the actual assault and offered insufficient support for conviction based solely on the complainant's testimony and medical evidence.

What did the court decide?

The criminal appeal was dismissed, upholding the acquittal of the original accused persons.

Prakash Hanmant Jadhav Vs Vishal Ganpati Salunkhe and Ors. — Property and Title | Bombay HC (2007)

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MSS

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY

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APPELLATE SIDE

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 CRIMINAL APPEAL NO. 185 OF 1996

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 PRAKASH HANMANT JADHAV )
 R/o Gandhinagar, Kashil Tal. )
 Satara ) .. APPELLANT
 (Org. Complainant)

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 Versus

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 1. VISHAL GANAPATI SALUNKE )
 2. BABAN GANAPATI SALUNKE )
 3. SUBHASH BABAN SALUNKE )
 4. SANDEEP VITHAL SALUNKE )
 All R/o Gandhinagar Kashil )
 Taluka & Dist. Satara )
 5. CHAGAN NAMDEO RAMVANT )
 R/O Chikhali, Tal. Karad )
 Dist. Satara. ) Org. Accused.
 6. STATE OF MAHARASHTRA ) .. RESPONDENTS
 Mr. S. V. Kotwal for appellant
 Mr. Milind Deshmukh for R-1

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 Mr. Rajeshree Gadhvi, APP

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CORAM:SMT. RANJANA DESAI, J.

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DATE: SEPTEMBER, 05, 2007.

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 ORAL JUDGMENT:

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 . The appellant is the original complainant. He
 has challenged in this appeal judgment and order
 dated 28/2/95 whereby the respondents are acquitted
 of the offences punishable under Section 323, 504,
 506 read with 34 of the Indian Penal Code ("I.P.C."
 for short). The respondents are original accused 1
 to 4 respectively and for convenience they are
 referred to as such.

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 2. The case of the complainant PW 1 Prakash Jadhav
 as disclosed from his evidence is that on 12/9/93
 at about 8 a.m. he had gone to plot No. 84 at
 village Kashil, Gandhinagar. The said plot belongs
 to him. He found that the boundary stone of his
 plot was removed. He called accused 3 Subhash and
 asked him as to who had uprooted the stone. At
 that time accused 1 and 2 came there. They rushed
 towards him. They started abusing him. Accused 2
 caught hold of his neck and accused 1 and 2 gave
 him kicks on his private parts. The accused pushed
 him. He fell on the ground. Accused 3 to 5 who
 were also present there dealt fist blows on him.
 At that time PW 2 Shamrao Maruti Jadhav and PW 3

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 Patang Baburao Jadhav came there. They rescued
 him. He then went to Borgaon Police Station and
 lodged his complaint. The police sent him to
 Nagthane Primary Health Centre. The doctor
 examined him and issued certificate Exh. 35.

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 3. On 15/9/93, the complainant filed a private
 complaint in the Court of Judicial Magistrate,
 Satara. In the complaint he gave a gist of the
 incident and in the verification he stated that
 because the police did not take any action on his
 complaint he had filed the complaint in the court .
 The learned Magistrate then issued process under
 Sections 323, 504, 506 read with Section 34 of the
 I.P.C. against the accused. Charges were framed
 against the accused. The accused pleaded not
 guilty.

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 4. In support of his case the complainant examined
 PW 2 Shamrao Maruti Jadhav. Shamrao Jadhav has
 stated that the incident had taken place about one
 year back at about 8 a.m. in the morning. He was
 at the playground at Gandhinagar. PW 3 Patang
 Jadhav was with him. They heard sound of beating
 and hence they went near Chapper of one Prakash.
 Two to four persons were there. According to him

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 accused 1,2 and 3 were there. A friend of accused
 3 was there but he did not know his name. He has
 stated that he rescued PW 1.

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 5. PW 3 is Patang Jadhav. He has stated that the
 incident in question took place about one year back
 at about 8 to 8-30 a.m. That time he was standing
 in the playground. He was chatting with Shamrao
 Jadhav. He heard a sound of beating. He,
 therefore, went towards the direction of the sound.
 According to him accused 1, 2, 3 and 4 were there.
 They were beating PW 1 Prakash. According to him
 he and PW 2 Shamrao rescued PW 1.

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 6. PW 4 is Dr. Vilas Ramchandra Nalawade. At the
 relevant time he was attached to PHC Nagthane as
 Medical Officer. He had examined PW 1 Prakash on
 19/2/93. He has proved the medical certificate
 which is at Exh.-35. He has stated that he had
 issued the medical certificate. The medical
 certificate shows that on 12/9/93 at 1-30 p.m. PW
 1 Prakash was examined at the PHC Nagthane. Dr.
 Nalawade has described the injuries found on PW 1
 Prakash as under:

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 ". Injury No. 1 multiple minor abrassions over

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 neck anteriorly. The age of injury within 24
 hours.

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 . Injury No. 2 tenderness over right scrotum.
 Swelling present.

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 . Injury No. 3 minor abrassion over scortum upper
 part.

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 . Injury No. 4 tenderness over back lumber
 regiod."

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 According to him the injuries were possible by hard
 and blunt object and all the injuries were simple
 in nature.

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 7. The defence of the accused was of total denial.
 According to the accused their house is in Plot No.
 81 and their cattle shade is in plot Nos. 82 and
 83. Plot No. 84 is an open plot. It belongs to
 PW 1 Prakash. According to PW 1 Prakash, the
 accused have constructed their house on his plot
 though in fact it is not so. Because of this PW 1
 Prakash has filed a false complaint.

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 8. After perusing the evidence on record, the

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 learned Magistrate came to a conclusion that the
 complainant has failed to prove his case beyond
 reasonable doubt and hence he acquitted the
 accused. Hence this appeal.

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 9. I have heard at some length Mr. Kotwal,
 learned counsel appearing for the appellant, Mr.
 Milind Deshmukh, learned counsel for respondent 1
 and Ms. Gadhvi, the learned APP.

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 10. Mr. Kotwal, learned counsel for the appellant
 submitted that the impugned judgment and order is
 perverse and deserves to be set aside. He
 submitted that Medical Officer PW 4 Dr. Nalawade
 has issued certificate after examination of PW 1 on
 12/9/93 at 1-30 p.m. The certificate has been
 proved by him in his evidence. In his evidence Dr.
 Nalawade has reiterated the injuries received by PW
 1. The injuries are on the private parts of PW 1.
 PW 1 has clearly stated that the accused kicked him
 on his private parts. Therefore, oral evidence of
 PW 1 is consistent with the medical evidence.
 Because the police did not take action within three
 days PW 1 has lodged the instant private complaint
 in the court. Mr. Kotwal contended that evidence
 of PW 1 inspires confidence and the learned

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 Magistrate should have believed it. He submitted
 that PW 1’s evidence is supported by the evidence
 of PW 2 Shamrao Jadhav and PW 3 Patang Jadhav. The
 learned Magistrate has disbelieved them because of
 insignificant discrepancies in their evidence. Mr.
 Kotwal contended that, therefore, impugned judgment
 and order be set aside and the accused be convicted
 in accordance with law.

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 11. The learned counsel appearing for the 1st
 respondent submitted that the view taken by the
 trial court is a reasonably possible view. The
 complainant has failed to prove his case beyond
 reasonable doubt and, therefore, the accused have
 rightly been acquitted. He submitted that no
 interference is necessary with the impugned order.

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 12. It is well settled that if the view taken by
 the trial court is a reasonably possible view, this
 court should not interfere with it in an appeal
 against acquittal. It is equally well settled that
 merely because some other view is possible on the
 facts of the case, this court should not set aside
 the view of the trial court, if it is a reasonably
 possible view and substitute its own view in place
 thereof. (State of Rajasthan v. Raja Ram (2003) 8

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 SCC 180). Keeping these principles in mind I shall
 approach this case.

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 13. The complainant has stated that the accused
 kicked him on his private parts. It is also true
 that the doctor’s certificate indicates that the
 accused had received injuries on his private parts.
 But the question is whether it is proved that it is
 the accused who caused those injuries.

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 14. Evidence of PW 2 Shamrao Jadhav and PW 3
 Patang Jadhav is sketchy. It does not appear that
 Shamrao Jadhav had in fact seen the incident. He
 says that he was at the playground along with
 Patang Jadhav and upon hearing the sound he went
 towards the direction of the sound. He rescued the
 complainant. Therefore, though he states that
 accused 1, 2 and 3 were present, his evidence is
 not useful to establish that it is the accused who
 attacked the complainant. He has obviously not
 seen the incident. Similarly PW 3 Patang Jadhav
 has stated that upon hearing the sound he went to
 that direction along with Shamrao Jadhav. He has
 stated that the accused were present there and they
 were beating Prakash. He has further stated that
 he and PW 2 Shamrao Jadhav rescued the complainant.

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 However, his evidence that he had seen the assault
 is doubtful because it is the case of PW 2 and PW 3
 that they went together to the place where the
 complainant was being attacked and it appears from
 the evidence of PW 2 that they reached there after
 the assault was over. It is doubtful whether PW 3
 could have seen the assault because PW 2 does not
 say that he saw the accused beating the
 complainant. In the circumstances the evidence of
 these two witnesses is not consistent and it does
 not bear out the case of PW 1. They do not offer
 the required corroboration to the case of PW 1. It
 will be, therefore, difficult to rely only on the
 evidence of PW 1 and convict the accused. In the
 absence of any corroboration to the evidence of PW
 1 as regards the actual incident, it is difficult
 to convict the accused on the basis of interested
 evidence of PW 1 and the medical evidence.

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 15. In any case, in my opinion, the view taken by
 the trial court is a reasonably possible view which
 does not deserve to be disturbed in an appeal
 against acquittal. In the circumstances, the
 appeal is dismissed.

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 JUDGE.

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY

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APPELLATE SIDE

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 CRIMINAL APPEAL NO. 185 OF 1996

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DATE OF DECISION:05/9/2007

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 Submitted for
 approval.

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THE HON’BLE (SMT.) JUSTICE RANJANA DESAI:

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THE HON’BLE SHRI JUSTICE :

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1. Whether Reporters of Local Papers ) be allowed to see the Judgment? )

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2. To be referred to the Reporters or ) not? )

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3. Whether Their Lordships wish to ) see the fair copy of the Judgment? )

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4. Whether this case involves a ) substantial question of law as to ) the interpretation of the ) Constitution of India, 1950 or any ) Order made thereunder? )

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5. Whether it is to be circulated to ) the Civil Judges? )

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6. Whether the case involves an impor- ) tant question of law and whether ) a copy of the judgment should be ) sent to Nagpur, Aurangabad and Goa ) Offices? )

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY

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APPELLATE SIDE

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 CRIMINAL APPEAL NO. 185 OF 1996

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 PRAKASH HANMAN JADHAV .. APPELLANT
 (Org. Complainant)

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Vs.

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 VISHAL GANAPATI SALUNKE & ORS. .. RESPONDENTS
 (Org.Accused 1 to 4)

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 Mr. S. V. Kotwal for appellant

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 Mr. Milind Deshmukh for R-1

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 Mr. Rajeshree Gadhvi, APP.

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 CORAM: SMT. RANJANA DESAI, J.

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 DATE: SEPTEMBER 05, 2007

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 OPERATIVE PART OF ORDER:

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 . For the reasons stated in the oral judgment,
 this court has dismissed the appeal.

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 JUDGE.

Prakash Hanmant Jadhav v. Vishal Ganpati Salunkhe and Ors.

Case brief

What is this about?

What did the court decide?

Prakash Hanmant Jadhav v. Vishal Ganpati Salunkhe and Ors.

Case brief

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What did the court decide?

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