JUDGMENT
P.S. Brahme, J.
1. This is an appeal against the order of acquittal of respondents of offences punishable Under Sections 323, 204, 506 r/w 34 of I.P. Code, passed by Judicial Magistrate (F.C.), Chandrapur on 29-8-1990.
2. The incident, which gave rise to this prosecution against the respondents took place on 20-7-2004 in the evening at village Dighori, which comes under Police station, Mul. The victim of assault is Smt. Punabai (PW 4), wife of complainant Urkuda Govinda Dhoke (PW 2). On the day of occurrence witness Urkuda was not at home, as he had gone to nearby village to the school to attend his duties as a teacher. Respondents are resident of village Dighori. The respondent No. 1 Udhav Aglawe is the husband of respondent No. 3 Anusaya, while respondent No. 2 Namdeo Sontakke is the husband of respondent No. 4 Saraswatibai. At the time of occurrence respondents Anusayabai and Saibai had gone to fetch water to a well. The victim Punabai also went to the well for fetching water, carrying with her a pitcher. When she reached the well, she noticed that the pulley that was on the well used for drawing water was broken. She, therefore, questioned respondents as to who broke the pulley. It is the case of prosecution that the said query made by witness Punabai made respondents enraged and they started giving abuses to Punabai in filthy language. That time respondent No. 1 reached to that place from his house and he also joined other respondents in giving abuses to Punabai and gave slap on the back of Punabai and her pitcher was broken and respondent No. 2 Namdeo who came there, also abused Punabai. This incident was witnessed by persons who collected there and amongst them was witness Ramchandra (PW 3), who, according to him, watched the incident from his field which is at the distance of about 50 ft. The complainant came home and after her husband returned, disclosed him about the incident. Her husband, witness Urkuda, on 22-7-1984 went to the Police Station Mul and lodged written report (Exh. 39), on the basis what was disclosed to him by his wife Punabai. Police Head Constable Mahadeo Urkuda (PW 5) who was attached to P.S. Mul on 22-7-1984, on receiving the written complaint (Exh. 39), prepared occurrence report (Exh. 43) and registered the offence and carried out investigation. He visited the place of occurrence and prepared spot panchanama (Exh. 37). After completing investigation he filed charge-sheet against the respondents in the Court of Judicial Magistrate (F.C.), Chandrapur.
3. Before the Court respondents stood trial on basis of allegations vide charge (Exh. 21). Respondents pleaded not guilty to the charge and claimed to be tried. Their defence is of total denial. At the trial the prosecution examined in all five witnesses including Urkuda, victim Punabai, witness Ramchandra (PW 3) who claimed to be the eye witness to the incident, police Head Constable Sheshrao (PW.5). The trial Court, on appreciation of evidence, found that the prosecution has failed to establish the guilt of the respondents on the evidence on record. He, therefore, acquitted respondents of the offences for which they were charged.
Hence, this appeal.
4. I have heard Mr. Lanjewar, learned A.P.P. for the appellant and Mr. M. D. Shende, advocate (appointed) for respondents Nos. 4 and 5. I have also gone through the record as well as evidence on record. It is needless to say, as rightly pointed by learned A.P.P., that the material evidence that requires consideration is that of victim Punabai and independent witness Ramchandra. The learned A.P.P. submitted that the trial Court has not appreciated the evidence of witnesses Punabai and Ramchandra in correct perspective. Their evidence inspires confidence and there is no infirmity in their evidence. He further submitted that the trial Court has given much importance to delay in lodging the complaint. The complainant is a lame person. He has stated in his evidence that on the day of occurrence he had been to other village to attend his duties and even on the next day he had been to other village and that is why the complaint could not be lodged on the day of occurrence. He, therefore, urged that the appeal be allowed and the respondents be convicted.
5. As against that, Mr. Shende, learned advocate appealing for respondents to Nos. 4 and 5, submitted that the evidence of victim Punabai does not inspire confidence, in as much as, the solitary independent witness Ramchandra has given evidence which is inconsistent with her evidence. The learned counsel pointed out that in respect of hurling abuses, the evidence of witness Ramchandra is not only inconsistent with that of witness Punabai but it is brought through the evidence of Investigating Officer that in that regard he has not stated so in his statement, recorded by him. The presence of witness Ramchandra is doubtful that he has not uttered a word even about presence of respondent No. 2 on the scene of offence. It is submitted that the explanation given by the complainant for delay in lodging the complaint is far from truth. He, therefore, urged that the trial Court has committed no error in acquitting the respondents and as such the appeal merits no consideration at all.
6. The alleged incident has taken place on the well where the respondents Nos. 3 to 5 had gone for fetching water. It is in the evidence that besides witness Ramchandra, there were other persons residing in the locality who also witnessed the incident. But for the reasons best known to the prosecution, none of them was examined. The trial Court has, in that context, stated that adverse inference against the prosecution has to be drawn. I do not agree with this proposition, laid down by the trial Court. It is not the requirements of law that all the persons who have witnessed the incident should be necessarily examined by the prosecution at the trial. It is always said that what weighs is the quality of the evidence and not the quantity. Therefore, merely because prosecution did not examine other persons who had witnessed the incident, no adverse inference can be drawn against the prosecution. But at the same time, what prudence required is that some additional evidence was required in order to appreciate the prosecution case and i.e. much more so in the back ground of the quality of evidence of witness Ramchandra. This witness Ramchandra has, no doubt, claimed to have witnessed the incident. But he did not go to the place of occurrence. According to him, while he was in his field, his attention was attracted when there was noise of quarrel and from the place he was, he saw and heard also the quarrel and more particularly abuses, the respondents were giving to the victim, using filthy language. It is brought in his cross-examination that the abuses uttered by the respondents which he heard and about which he stated in his evidence that not the same, which he disclosed when his statement was recorded by the Investigating Officer. The Investigating Officer, Mahadeo Urkude (PW 5) in his cross-examination admitted that witness Ramchandra did not state to him that accused No. 3 Anusayabai abused Punabai by uttering the words “Tula Zoka Deon Rand Maroon Takin”. What is significant is that witness Ramchandra in his cross-examination when accosted with his statement, recorded by police viz-a-viz his evidence before the Court, stated that he cannot assign any reason why in his statement, recorded by police, it is not mentioned as to the abuses uttered by witness Punabai. He could not assign any reason as to why the fact that the accused No. 4 abused Punabai by uttering words “Bhosada Rand Hi Badmash Ahe”, as stated by him in examination-in-chief. So, these omissions in his evidence coupled with the fact that basically his evidence is contradictory to the version of victim Punabai, which goes to show that he is not witness of truth. In addition to that, though prosecution claimed that respondent No. 2 visited the place of occurrence and he too joined other respondents in giving abuses to Punabai, but then witness Ramchandra has not uttered a single word about any act done by respondent No. 2, much less about his presence at the place of occurrence. The trial Court has rightly, for these reasons, discarded the evidence of this witness Ramchandra. It is in this context, therefore, the prudence required that other independent witnesses ought to have been examined by the prosecution, amongst the persons who were present at the place of occurrence. In the absence of their evidence, the evidence of witness Punabai suffers from infirmity and in the background of other circumstances no reliance can be placed on her evidence.
7. It is true that witness Punabai stated about the incident in her evidence in which respondents have hurled abuses to her and respondent No. 1, having appeared on the scene, slapped her on her back. However, her evidence has been shattered in cross-examination by the defence. In earlier part of the judgment inconsistency viz-a-viz the evidence of witness Ramchandra is pointed. There is another circumstance, which makes her claim doubtful is about delay in reporting the matter to police. In his case, the incident has taken place on 20-7-2004. The report in that regard was lodged by witness Urkuda on 22-7-1984 at P. S. Mul which is 35 kms. away from village Dighori. There is disparity in the evidence as to when Urkudaji returned to his house from the village where he had gone to attend his duties on the day of occurrence. In this evidence he has stated that he returned home on the same day of occurrence, while the victim says that he came on the next day. The fact remains that neither complaint was lodged on the same day nor on the next day. It is again very significant to note that the witness Urkuda in his evidence stated that on the next day he went to other village and then on the next day he went to the Police Station to lodge the complaint. If really the incident, as alleged by the prosecution, had taken place and it was so serious, as claimed in the nature of things, the matter would have been reported to the police, at least, on the next day. The evidence on record certainly goes to show that complainant Urkuda on his return from the village on that evening came to know about the incident of assault and abuses, as disclosed by his wife. If that was so then it does not appeal to the reasons that the complainant would remain silent for two days and it was on the third day that he went to the police to lodge the report. In my opinion, the trial Court was right in observing that this delay in reporting the matter to the police, brings out inherent infirmity in the prosecution case. That is the reason why evidence of complainant Punabai cannot be placed reliance on. The trial Court has committed no error in rejecting the evidence. So, on the appreciation of evidence independently, as a appellate Court, I have no hesitation in saying that the prosecution has utterly failed to prove that the respondents have committed the offence, as alleged.
8. This is an appeal against acquittal. In catena of decisions of Apex Court and High Court, the parameters of appellate Court to interfere with the order of acquittal are laid down. The apex Court in recent decision in 2004 Cri LJ 640 Ramanand Yadav v. Prabhu Nath Jha, has observed that —
“There is no embargo on appellate Court reviewing the evidence upon which an order of acquittal is based. Generally, the order of acquittal shall not be interfered with because the presumption of innocence of the accused is further strengthened by acquittal. The golden thread which runs through the web of administration of justice in criminal cases is that if two views are possible on the evidence adduced in the case, one pointing to the guilt of the accused and the other to his innocence, the view which is favourable to the accused should be adopted. The paramount consideration of the Court is to ensure that miscarriage of justice is prevented. The principle to be followed by appellate Court considering the appeal against the judgment of acquittal is to interfere only when there are compelling and substantial reasons for doing so. If the impugned judgment is clearly unreasonable and relevant and convincing materials have been unjustifiably eliminated in the process, it is a compelling reason for interference.”
9. In 2003 All MR (Cri) 2635 (SC), Kunju Muhammed and Khumani v. State of Kerala, the apex Court while considering appeal against conviction by the High Court, on reversal of acquittal by the trial Court, observed that order of acquittal can be interfered with only if there is absolute assurance of guilt of the accused, upon the evidence on record. The Apex Court in that decision reproduced the observations of the Apex Court in Shailendra Pratap v. State of U. P., 2003 (I) SCC 761 : (2003 Cri LJ 1270). The Apex Court held —
“It is well settled that the appellate Court would not be justified in interfering with the order of acquittal unless same is found to be perverse. In the present case, the High Court has committed an error in interfering with the order of acquittal of the appellants recorded by the trial Court as the same did not suffer from the vice of perversity.”
The Apex Court held that —
“The above principles have been consistently followed by this Court in a large number of cases.”
10. The Apex Court in Dhanna v. State of M.P., 1996 (10) SCC 79 : (1996 Cri LJ 3516) had laid down that —
“Though the High Court has full power to review the evidence and to arrive at its own independent conclusion whether the appeal is against conviction or acquittal. While doing so it ought to bear in mind : first, that there is a general presumption in favour of the innocence of the person accused in criminal cases and that presumption is only strengthened by the acquittal. Secondly, it should bear in mind that every accused is entitled to the benefit of reasonable doubt regarding his guilt and when the trial Court acquitted him, he would retain that benefit in the appellate Court also. Thus, the appellate Court in appeals against acquittal has to proceed more cautiously and only if there is absolute assurance of the guilt of the accused, upon the evidence on record, that the order of acquittal is liable to be interfered with or disturbed.”
In the decision of our High Court in 2003 Cri LJ 3639, State of Maharashtra v. Haribhau Krishnaji Deshmukh, it is held that–
“Power of interfering with the order of acquittal is equal to that of interfering with the order of conviction and it can be done for substantial and compelling reasons or it may be said that sufficient and cogent reasons or for strong reasons. Unless appeal has strong reasons to interfere with the order of acquittal it need not be done. Where two views are possible on appreciation of evidence and the Court ordering acquittal, has taken one view, it is reasonably possible and the appellate Court enquiring into the correctness of the acquittal on reappreciation takes another view, but according to the criminal jurisprudence, benefit must go to the accused and the High Court should refrain from interfering with such acquittal. The order of acquittal can be set aside if the view taken by the appellate Court is sustainable in law and perverse.”
11. Now coming to the case at hand, even on appreciation of evidence in correct perspective, it has to be said that the view taken by the trial Court is possible and also reasonable. It cannot be said that the view taken by the trial Court is unsustainable in law and perverse. Therefore, there is no justifiable reason to interfere with the order of acquittal, recorded by the trial Court. In this view of the matter, the appeal merits no consideration at all. Hence, the order.
ORDER
Appeal is dismissed.
Mr. M. D. Shende, advocate who is appointed from the Legal Aid Panel for respondent Nos. 4 and 5 is to be paid his charges which are quantified as Rs. 2000/-.