Judicial Analysis Court Copy Headnote Facts Arguments Court observation

2023 Supreme(Bom) 2254

IN THE HIGH COURT OF BOMBAY
S.M. Modak, J.
State of Maharashtra - Appellant
Versus
Jomesh Kana Thakur - Respondent
Criminal Appeal No. 1297 of 2012
Decided On : 05-06-2023

Advocates appeared:
Y.Y.Dabke, Advocate, Pravin B.Gole, Advocate, Pradeep Patil, Advocate, Nitesh P.Hinduja, Advocate

IMPORTANT POINT
The prosecution must not only establish the commission of an offense but also address any defenses raised by the accused, particularly regarding injuries sustained during the incident, to meet the burden of proof.

Headnote:
KEYWORD - SUBJECT - ACT SECTION LIST - SUMMARY
Fact of the Case:
The case involves an appeal against the acquittal of two respondents accused of assaulting Kiran Ram Kamble and his maternal aunt, Shobha Mukund Gaikwad, under various sections of the IPC and the Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act, 1989. The incident occurred on 22/09/2009, where the accused allegedly abused and assaulted the complainants, referring to their caste.
Finding of the Court:
The trial court acquitted the respondents due to the prosecution's failure to explain the injuries sustained by the accused and the lack of corroborative evidence from other witnesses. The appellate court found no reason to interfere with the trial court's well-reasoned judgment.
Issues: Whether the prosecution proved the charges against the respondents, particularly regarding the assault and the application of the Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act, 1989.
Ratio Decidendi: The court emphasized the prosecution's burden to explain the injuries on the accused and the necessity of corroborative evidence. The absence of additional witnesses and the failure to address the defense's claims led to reasonable doubt regarding the prosecution's case.
Final Decision: The appeal was dismissed, upholding the trial court's acquittal of the respondents.

JUDGMENT/ORDER

1. Heard learned APP for the Appellant-State, learned Advocate for Respondent-accused and learned Advocate for the complainant and victim.

2. In fact, in this Appeal learned APP Shri Dabke and learned Advocate Shri Gole for the Respondents-accused have almost completed their arguments. At the fag end, Mr. Dabke pointed out that as per amendment by way of Sec. 15-A (2) of the Scheduled Castes and the Schedules Tribes (Prevention of Atrocities) Act, 1989, the victim needs to be heard.

3. In this case, Kiran Ram Kamble-first informant, and her Maternal Aunt-Shobha Mukund Gaikwad are the victims. Hence, notice was issued to them. Though served, they have not appeared through their Advocate. Hence, as per request made, learned Secretary of the High Court Legal Committee has appointed Advocate Mr. Nitesh Hinduja to represent them. Accordingly, I have heard him and then closed matter for order.

4. The Court of Additional Sessions Judge, Raigad, Alibag acquitted both the Respondents for the offences punishable under Sec. 504, 506 read with Sec. 34 of IPC and under Sec. 3(1) (x) of the Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act, 1989, as per judgment dtd. 11/11/2011. The said judgment is impugned in this Appeal.

5. The first informant-Kiran Ram Kamble is resident of village Rodpali, Taluka Panvel, District Raigad. He does labour work. Jomesh Thakur is the father of Respondent No.2-Vikram Thakur. He owns a shop at Roadpali road. The incident took place on 22/9/2009, at about 17.30 hours near pan shop in front of garage. Shobha Mukund Gaikwad is the Maternal Aunt of the first informant. There is background to this incident.

6. As such trivial incident took place on 9/9/2009. At about 6 pm, the first informant-Kiran Kamble had gone to Kalamboli market, on motor cycle. There was crowd on road. At that same time accused No.2-Vikram and his father accused No.1-Jomesh Thakur, were coming in their Scorpio jeep. The first informant gave hand signal to stop the vehicle. The accused No.2-Vikram got annoyed and beat Kiran with fist and kick blows. The complainant also lodged police complaint.

7. The main incident took place on 22/9/2009. At about 17.30 hours the first informant-Kiran Kamble was standing near pan shop of Shobha Mukund Gaikwad, in front of garage. She is his Maternal Aunt, at the same time Respondent-Vikram was also standing in front of garage with his Scorpio vehicle. After seeing Kiran, accused No.2-Vikram abused Kiran by referring him to his caste Mahar and also beat him with fist and kick blows. His maternal aunt Shobha Gaikwad tried to separate quarrel. Respondent No.2-Vikram also abused her in filthy language by referring to their caste as Mahar. Respondent No.2-Vikram called his father-Jomesh Thakur. After arrival on the spot, Jomesh Thakur instigated his son Vikram. Some how the complainant-Kiran Kamble escaped and then lodged complaint with Kalamboli police station on 22/09/2009. The police have registered an offence under Sec. 323, 504, 506 read with 34 of IPC and under Sec. 3(1)(x) of the Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act, 1989 and under Sec. 7(1)(d) of Protection of Civil Rights Act.

8. As required by law, the investigation was carried out by ACP Pralhad Sadanshiv. The charge-sheet was filed. As the Respondentsaccused have denied committing the offence, the trial was conducted. Though expressly they have not pleaded about injuries caused to them during cross examination they have brought on record, the certificate issued by Satyam Multi Speciality Hospital, Kalamboli for injuries caused to Respondent No.2-Vikram Thakur.

The prosecution examined following witnesses :

(a) PW 1 Kiran Ram Kamble-first informant.

(b) PW 2 Shobha Mukund Gaikwad-victim.

(d) PW 4 Kailash S. Jaiswal-spot panch.

(e) PW 5 Sudhakar D Mahale-PSI registered the FIR.

(f) PW 6 ACP Pralhad Sadanshiv, ACP, Investigating Officer.

9. PW 1-Kiran Kamble an

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