Dismissed

State of Maha v. Shivaji Borude and Anr.

Bombay HC8 Jan 2016APEAL/719/2002

Case brief

AI extract

What is this about?

The State and the original complainant challenged the acquittal of accused persons in a criminal case alleging assault and causing hurt. The High Court examined the prosecution evidence, including medical reports and witness testimonies, finding them inconsistent and lacking sufficient corroboration to sustain conviction. The court upheld the lower court's finding of benefit of doubt.

What did the court decide?

Bail bonds of the respondents, if any, shall stand cancelled.

State of Maha Vs Shivaji Borude and Anr. — Murder and Culpable Homicide | Bombay HC (2016)

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(1) Cr. Appeal 719/2002 - Judgment

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD

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CRIMINAL APPEAL NO. 719 OF 2002

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The State of Maharashtra,

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at the instance of
Ravindra Radhakrishana Kakde,
R/o Newasa Kd.
Through P.S.O., Newasa,
District : Ahmednagar

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.. Appellant

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 VERSUS

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1. Shivaji Bhaguji Borude, Age : 32 years, Occ.: Agri.,

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2. Mohan Bhaguji Borude, Age : 42 years, Occ.: Agri.,

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 Both r/o Gomalwadi Shivar,
 Tal. Newasa, Dist. Ahmednagar

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.. Respondents

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WITH

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CRIMINAL REVISION APPLICATION NO. 318 OF 2002

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Ravindra s/o Radhakrishna Kakde,
Age : 30 years, Occu.:Agri.,
R/o. Newasa (Kd.), Tq. Newasa,
Dist. Ahmednagar

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.. Petitioner

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(Ori.Complainant)

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VERSUS

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1. The State of Maharashtra,

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2. Shivaji Bhaguji Borude, Age : 32 years, Occ.: Agri., R/o Gomalwadi Shivar, Tal. Newasa, Dist. Ahmednagar

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3. Mohan Bhaguji Borude,
 Age : 42 years, Occ.: Agri.,
 R/o Gomalwadi Shivar,
 Tal. Newasa, Dist. Ahmednagar

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.. Respondents

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(2) Cr. Appeal 719/2002 - Judgment

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Mr. A.R. Kale, A.P.P. for the Appellant-State in both matters

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Mr. V.R. Autade, Advocate for the respondents in Cri. Appeal
No. 719/2002

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Mr. R.N. Dhorde, Senior Advocate for the petitioner in Cri.
Revision Application No.318/2002

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 CORAM: M.T. JOSHI, J.
 DATE : 08/01/2016

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ORAL JUDGMENT :

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Heard both sides.

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2.Aggrieved by the acquittal of the respondents

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by the learned Judicial Magistrate First Class, Newasa
vide judgment and order dated 21/08/2002 passed in

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Regular Criminal Case No. 177 of 1999 from the offences
punishable under section 324, 504, 506 r/w. 34 of the
Indian Penal Code, while the State has preferred the
Criminal Appeal, the original complainant - Ravindra
Kakde has preferred the Criminal Revision Application.

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3.The prosecution case in short is as under:-

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.That the present two respondents as well as the

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complainant are resident of village Dhangarwadi, Taluka

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– Newasa. Complainant – Ravindra Kakde was the Police

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(3) Cr. Appeal 719/2002 - Judgment

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Patil during the relevant period. The complainant's

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father had earlier filed a complaint with the Police
Station against the present respondents that they had
threatened and abused him.

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.In the circumstances, on 14/08/1999 at about
6:30 pm, PW3 – Police Constable Galphade of the said
Police Station alongwith his colleague came to the
village to make enquiry in the said complaint. At that
time, the complainant and his brother Dharmendra were
carrying agricultural works in their field at gat no.
100. PW3 – Police Constable Galphade enquired about the
whereabouts of the present respondents, whereupon the
complainant shown the place of the respondents and,
therefore, the Police proceeded towards the said place.

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. The respondents however immediately rushed to
the complainant and his brother and assaulted them by an
iron rod and sticks. Respondent no.1 – Shivaji gave
blows with iron rod on the head and right shoulder of
the complainant, respondent no.2 – Mohan was assaulting
with stick. He gave blow of it on the forehead and

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left hand of Dharmendra and bite his right ear. The
Police officials present at the spot rushed to them and

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(4) Cr. Appeal 719/2002 - Judgment

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the respondents ran away from the spot.

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4.The investigation was carried by PW5 – PSI
Kande. Medical examination of the complainant, his
brother was carried by PW4 – Dr. Pedpallikar. Upon
arrest, both the respondents made statement leading to
the recovery of the respective weapons and later-on the
chargesheet came to be filed.

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5.Before the learned Judicial Magistrate First

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Class, Newasa, in all 5 witnesses were examined. Those
were complainant – PW1 - Ravindra, his brother PW2 –

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Dharmendra, PW3 – Constable Galphade, PW4 – Dr.
Pedpallikar and A.S.I. Kande as PW5. The medical
certificates as well as various panchanamas were pressed
into service.

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6.During the cross-examination, the complainant
has admitted that already one civil suit was filed in
respect of the land gat no.100 against him. Respondent
no.2 however was cultivating the said land on behalf of
Harde – the original plaintiff in the suit, as a power
of attorney holder. Due to this admission during trial,
the learned Judicial Magistrate First Class found that

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(5) Cr. Appeal 719/2002 - Judgment

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there was already a civil dispute between the parties.

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Further, taking into consideration the lacunae in the
prosecution case, the learned Judicial Magistrate First
Class observed that benefit of doubt will have to be
extended and the respondents came to be acquitted.

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7.The learned A.P.P. for the appellant/State as
well as Mr. Dhorde, learned senior counsel appearing for
the petitioner in the Criminal Revision Application
submitted that the injuries on the person of the
complainant and his brother as proved by the Medical
Officer would clearly corroborate the prosecution case.
Not only this, the independent witness i.e. PW3 –
Constable Galphade, who had been at the spot has also
corroborated the version of the complainant and,
therefore, it was submitted that the reasoning of the
learned Judicial Magistrate First Class is perverse.

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8.On the other hand, Mr. Autade, learned counsel
for the respondents took me through the evidence and the
impugned judgment and submits that the reasons forwarded
by the learned Judicial Magistrate First Class are
reasonable and probable.

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(6) Cr. Appeal 719/2002 - Judgment

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9.On the basis of this material, following points
arise for my determination :-

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I) Whether the prosecution has proved
that on 14/08/1999 at about 6:30 pm in gat
no. 100 of village Gomalwadi, the present
respondents, in furtherance of their common
intention voluntarily caused hurt to the
complainant and PW2 – Dharmendra by
dangerous weapons ?

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II) Whether the prosecution has further
proved that the respondents, in furtherance
of their common intention abused the
complainant and provoked him to the extent
that he may commit breach of peace and also
has committed criminal intimidation ?

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My findings to both the above points are in the

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negative. Criminal Appeal and the Criminal Revision
Application are therefore dismissed for the reasons to
follow.

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R E A S O N S

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10.The prosecution case was that earlier, the

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present respondents had threatened and abused the father

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(7) Cr. Appeal 719/2002 - Judgment

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of the complainant and, therefore, the complaint was
filed against them. The fact that the complainant had
earlier filed a suit against one Harde in which the
accused no.2 was the power of attorney holder of Harde,
was not disclosed. Thus, this animus was suppressed by
the prosecution. In the circumstances, the learned
Judicial Magistrate First Class has rightly observed
that due to civil dispute, there was already enmity
between the parties.

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11.In the circumstances, though learned Judicial
Magistrate First Class was right in observing that
enmity is a double edged weapon, suppression of the said
enmity from the prosecution side speaks in volumes.

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12.Further, the injuries found by the Medical
Officer did not match with the number of injuries
deposed to by the complainant and his brother PW2 –
Dharmendra. While according to the prosecution, the
complainant has suffered two injuries, the Medical
Officer found three injuries on his person. As regards
Dharmendra, the prosecution case was that he has
sustained three injuries while five injuries were found
on his person by the Medical Officer.

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(8) Cr. Appeal 719/2002 - Judgment

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.In the situation, the observations of the
learned Judicial Magistrate First Class that there was
exaggeration in the version, is not logical. The fact
however remains that the evidence of the injured
witnesses do not match with the description of the
injuries on their person allegedly found by the Medical
Officer.

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13.Perusal of the injury certificates would show
that all the injuries were simple in nature and a
suggestion was given to the Medical Officer that without
examining the witnesses, he had passed the certificate.

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14.Without any material on record, it would have
been difficult to accept the said case of non-
examination of the witnesses. However, the history of
the trial itself would reveal that while the complainant
was the Police Patil of the village, the presence of PW3
– Constable Galphade at the spot is shrouded in
suspicion. The Constable has deposed that he was orally
instructed by PW5 - Kande to visit the village to make
enquiry regarding the incident. PW5 – Kande however
deposed that he had however in-fact issued written

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(9) Cr. Appeal 719/2002 - Judgment

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direction to PW3, but those directions were not produced
on record. Further, the deposition of PW3 – Galphade
and of the complainant would show that there is much
variance between their evidence, as to at what distance
Constable – Galphade was when the incident had started.

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15.Not only this, though, according to the
prosecution, both the respondents while in the Police
custody made a statement leading to the recovery of the
respective weapons, none of the panch witnesses to the
panchanamas and the activities in this regard were at
all examined by the prosecution and those panchanamas
were proved from the mouth of the Investigating Officer.

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Even, the weapons were not sent for chemical analysis.
Thus, the entire investigation is shrouded in suspicion.

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16.In the circumstances, though normally if

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corroboration to the oral deposition of the injured
witnesses is found by the injuries on his person, the
conviction can be recorded, all the peripheral material
on record, as detailed supra, would show that the
learned Judicial Magistrate First Class has taken a
reasonable and probable view of the material before him.
Therefore, in the present appeal against acquittal, no

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(10) Cr. Appeal 719/2002 - Judgment

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interference is warranted. In the circumstances,
Criminal Appeal as well as the Criminal Revision
Application are hereby dismissed. Bail bonds, if any of
the respondents shall stand cancelled.

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 Sd/-

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[M.T. JOSHI]
 JUDGE

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arp/

State of Maha v. Shivaji Borude and Anr.

Case brief

What is this about?

What did the court decide?

State of Maha v. Shivaji Borude and Anr.

Case brief

What is this about?

What did the court decide?

What the court decided

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