1/6

9.APEAL-428-2007.doc

IN THE HIGH COURT OF JUDICATURE AT BOMBAY

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO.428 OF 2007

The State of Maharashtra

)….Appellant/Complainant

V/s.

1) Dattatray Bajrang Choughule

Age : 60 years, Occu. : Agri

R/o. Gardi, Tal. Pandharpur,

District - Solapur

)

)

)

)

2) Pradeep Dattatray Choughule

Age : 30 years, Occu. : Agri

R/o. Gardi, Tal. Pandharpur,

District - Solapur

)

)

)

).….Respondents/accused

----

Mrs. Anamika Malhotra, APP for State – Appellant.

None for respondents.

----

CORAM : K.R.SHRIRAM, J.

DATE : 7^th MAY 2021

ORAL JUDGMENT :

1

This is an appeal impugning an order and judgment dated

3^rd September 2005 passed by the IV^th Joint Judicial Magistrate, First Class,

Pandharpur, acquitting respondents (accused) of offences punishable under

Section 323 (Punishment for voluntarily causing hurt), Section 325

(Punishment for voluntarily causing grievous hurt), Section 504 (Intentional

insult with intent to provoke breach of the peace) read with Section 34

(Acts done by several persons in furtherance of common intention) of the

Indian Penal Code (IPC).

2

Learned APP in fairness submitted that there are inconsistencies

in the evidence of the eye witnesses.

Gauri Gaekwad

2/6

9.APEAL-428-2007.doc

3

PW-4, who is supposed to have been assaulted by the accused,

has deposed that he sustained bleeding injuries and there were blood stains

on his clothes. PW-4 has also deposed that he did not go to the police station

with his clothes and the Investigating Officer (PW-8) also confirms that it

was necessary to have seized those clothes. This creates a doubt as to

whether PW-4 really sustained injuries as alleged.

4

PW-5, who is the wife of PW-4, states that she also sustained

injuries. PW-5 has deposed that her husband, i.e., PW-4, fell down then

accused no.2 Pradeep Choughule assaulted on the leg of PW-4 with a spade

and accused no.2 also assaulted PW-5 on her leg with a spade and one

Ajinath Pawar, Dattu Jadhav, Raghunath Pawar and Shahajan intervened.

But these things are not found in the statement of PW-5 to the police.

5

In the complaint, PW-4 has stated that he was present at his

vasti but in the cross examination, PW-4 states that he was not present at

the vasti. The Investigating Officer has not recorded the statements of other

eye witnesses. Police has not recorded the statement of PW-6 under Section

161 of Code of Criminal Procedure which also deprived the prosecution of

effectively cross examining PW-6. The evidence also indicates that there

were disputes between PW-4 and PW-6 on the one side and the accused.

PW-3 has deposed that he rushed to the spot after hearing the noise of

quarrel but the evidence indicates that the distance where PW-3 was from

the spot of incident was about five minutes walk away. The Trial Court,

Gauri Gaekwad

3/6

9.APEAL-428-2007.doc

therefore, has doubted the version of PW-3 that he was present at the time

of incident. Even the medical certificates has various corrections which have

not been proved. Based on these factors and many other, the Trial Court

acquitted the accused.

6

The Apex Court in Ghurey Lal V/s. State of U.P.

1 has culled out

the factors to be kept in mind by the Appellate Court while hearing an

appeal against acquittal. Paragraph Nos.72 and 73 of the said judgment read

as under :

72. The following principles emerge from the cases above :

1. The appellate court may review the evidence in appeals against

acquittal under sections 378 and 386 of the Criminal Procedure

Code, 1973. Its power of reviewing evidence is wide and the

appellate court can reappreciate the entire evidence on record. It

can review the trial court'

s conclusion with respect to both facts

and law.

2. The accused is presumed innocent until proven guilty. The

accused possessed this presumption when he was before the trial

court. The trial court'

s acquittal bolsters the presumption that he is

innocent.

3. Due or proper weight and consideration