Vikas @ Balu S/o Balwant Thakre vs State of Maharashtra

By the present appeal, the appellants are challenging

their conviction and the sentence imposed upon them by the learned

2nd Ad-hoc Additional Sessions Judge, Wardha, vide judgment and

order dated 20.8.2004 in Sessions Trial No. 24/2002.

(a) The appellants are convicted by the Court below for

the offence punishable under Section 337 read with Section 34 of the

Indian Penal Code and directed them to suffer rigorous

imprisonment for three months and to pay fine of Rs.100/- by each

of them and in default to suffer rigorous imprisonment for eight

days.

(b) The appellants are also convicted for the offence

punishable under Section 436 read with Section 34 of the Indian

Penal Code and on that count their sentence is sufferance of rigorous

imprisonment for three years and to pay fine of Rs.500/- by each of

them and in default to suffer rigorous imprisonment for one month.

I have heard Shri A. M. Jaltare, the learned counsel for

the appellant and Shri Amit Madiwale, the learned Additional Public

Prosecutor for the respondent-State. Both the learned counsel took

me through the record and proceedings and the notes of evidence in

this case.

The present appellants with four others were charged for

the offences punishable under Sections 147, 148, 337 and 436 read

with Section 149 of the Indian Penal Code by the learned Court

below.

Appellant no.1 Vikas @ Balu Thakre is accused no.1,

appellant no.2 Ravindra Hele is accused no.3 and appellant no.3

Jaiwant Sao is accused no.6. All the accused persons including the

appellants were acquitted of the offences punishable under Sections

147 and 148 of the Indian Penal Code. Except these three

appellants, other accused persons were acquitted from all the

charges, for which they were charged. No appeal is preferred against

their acquittal by the respondent/State.

The oral report (Exh.48) is lodged by Jogindersingh

Chahal (PW1). It is dated 03.11.2001. On the basis of said report,

the offence was registered at Police Station, Arvi of district Wardha

vide Crime No. 246/2001 for the offences punishable under Sections

147, 148, 149, 436, 337 and 427 of the Indian Penal Code and under

Section 135 of the Bombay Police Act. The printed first information

report is at Exh.49.

PW6 Vasant Shende, Police Sub Inspector, who at the

relevant time was attached to Police Station Arvi, is the Investigating

Officer. He completed the investigation and filed the charge-sheet.

P.W.5 Babulal Khairkar, on 02.11.2001 was posted at

the Out Post at Talegaon of Police Station, Arvi. He received

telephonic message that a quarrel took place at Sangam Dhaba. He,

therefore, with his staff rushed to the said dhaba. There he noticed

that 20-25 persons were committing mischief to the dhaba. They

were beating to the people present in the dhaba. According to the

evidence of P.W.5 Babulal, all the seven accused persons were the

members of the said mob. His evidence shows that he was only

knowing appellant no.1 Vikas by name. As per his evidence, the

owner of the said dhaba, that is PW1 Jogindersingh and others

sustained injuries. His evidence shows that while taking the injured

in the vehicle, the mob committed mischief to the dhaba by setting it

on fire.

The first information report is lodged by PW1

Jogindersingh, which is at Exh.48. His report Exh.48 and his

evidence show that on 02.11.2001, the appellant no.1 and two

others came to his dhaba. They demanded liquor. It was informed

to them by PW1 Jogindersingh that he did not supply the liquor. On

that, they picked up quarrel, extended threat and left the dhaba. As

per the report and as per evidence of PW1 Jogindersingh, after half

an hour, the appellant no.1 and other 20--25 persons came to

dhaba. They were holding stones and sticks in their hands and they

started pelting stones. He received injury on his forehead and nose.

His relative Sukhdevsingh and his servant Raj Sachdev (PW2) also

received the injuries. His evidence further shows that he informed

the happening at dhaba on telephone to the outpost at Talegaon.

Within 15 minutes, police came on the spot and when he was

removed by the police in their jeep for medical treatment and in that

process when they reached to highway, at that time, the mob set the

dhaba on fire.

Evidence of P.W.2 Raj Sachdev is also on the line of

evidence of P.W.1 Jogindersingh. PW.3 Mohd. Karnula Mohd.

Mansur, who was having a repair shop opposite the dhaba, has

turned hostile and has not supported the prosecution at all. P.W.4 is

one Devidas Raut and through him, spot panchanama (Exh.58) is

proved. However, he did not support the prosecution in respect of

seizure of weapons from the accused persons in his presence and to

that extent, he was declared hostile by the prosecution.

If the evidence of the prosecution witnesses is

scrutinized minutely, then it is clear that none of the prosecution

witnesses was knowing the name of any of the accused, except

appellant no.1/accused no.1 Vikas. All the prosecution witnesses

state that they were knowing other accused persons and other

members of the unruling mob by their faces. In spite of this, no test

identification parade was held by the investigating agency. In fact,

even the Investigating Officer PSI Vasant Shende (PW6) in his cross-

examination has stated that neither the complainant nor his brother

or servant or P.W.3 Mohd. Mansur state the names of any of the

accused in their statement. Therefore, in my view, holding of test

identification parade was imperative for fixing the identity of the

persons, who were the members of the mob.

Though, P.W.1 Jogindersingh and P.W.2 Raj Sachdev

claim that they received injuries on their person in stone pelting and

other assault made by the members of the mob and though, they

were taken to the hospital and were medically examined, the

prosecution has not examined the doctor, who has medically

examined and treated them and did not prove the injuries caused to

these two prosecution witnesses.

Further, the evidence of P.W.1 Jogindersingh and P.W.2

Raj Sachdev and even the evidence of P.W.5 Babulal, the Head

Constable, who rushed to the spot immediately after getting the

information and who took P.W.1 Jogindersingh and P.W.2 Raj along

with him, states that when they reached to highway that time they

noticed that the mob has set the dhaba on fire. Their evidence is

totally silent in respect of the specific role of any of the seven

accused persons, who were charged. In my view, the learned Judge

of the Court below has committed a mistake in convicting the

appellants for the same evidence, which was scrutinized by the Court

below for acquitting the remaining accused persons.

Though, the name of appellant no.1 Vikas is appearing

in the testimony of all the prosecution witnesses, all the prosecution

witnesses are conspicuously silent that it is this accused Vikas, who

has set the dhaba on fire or has facilitated any of the other accused

persons for committing the said act.

The quality of the evidence as brought on record, in my

view, shows that the entire case of the prosecution is surrounded by

mist of suspicion. The case does not travel beyond the suspicion.

The prosecution has not proved the guilt of the appellants beyond

reasonable doubt. Therefore, in my view, the impugned judgment

cannot stand to the scrutiny of law, warranting me to pass the

following order :

ORDER

1] The criminal appeal is allowed.

2] The judgment and order of conviction passed by

the learned 2nd Ad-hoc Additional Sessions Judge,

Wardha, dated 20.8.2004 in Sessions Trial No. 24/2002

is hereby quashed and set aside.

3] The appellants - (1) Vikas @ Balu S/o Balwant

Thakre, (2) Ravindra S/o Bhimrao Hele, and (3)

Jaiwant S/o Sukhdeo Sao, are acquitted of the offences

punishable under sections 337 and 436 read with

Section 34 of the Indian Penal Code.

4] Their bail bonds stand cancelled.

5] The criminal appeal is allowed and disposed of.