Bombay High Court
The State Of Mah And Ors vs Jagannath Kishanlal Kutiyawale And Ors on 11 August, 2025
2025:BHC-AUG:21697
CriAppeal-663-2005+
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
CRIMINAL APPEAL NO. 663 OF 2005
The State of Maharashtra
Through Police Station,
Nanded (Rural),
Taluka and District Nanded. ... Appellant
(Ori. Complainant)
Versus
1. Jagannath Kishanlal Kutiyawale
Age 51 years, Occupation Labour,
R/o. Wajegaon,
Taluka and District Nanded.
2. Narayan Kishanlal Kutiyawale
Age 40 years, Occupation Labour,
R/o. Wajegaon,
Taluka and District Nanded.
3. Parasram @ Guddu Jagannath Kutiyawale
Age 21 years, Occupation Labour,
R/o. Wajegaon,
Taluka and District Nanded. ... Respondents
(Ori. Accused)
.....
Mr. S. M. Ganachari, APP for the Appellant-State.
Mr. Mrigesh D. Narwadkar, Advocate for the Respondents.
.....
WITH
CRIMINAL REVISION APPLICATION NO. 28 OF 2005
Gangaram s/o Chotulal Bhatawale
Age 44 years, Occupation Agriculturist,
R/o Vasarni, Taluka and District Nanded. ... Applicant
(Ori. Complainant)
Versus
CriAppeal-663-2005+
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1. The State of Maharashtra
through Police Station Nanded
(Rural), Taluka and District Nanded.
2. Jagannath Kishanlal Kutiyawale
Age 51 years, Occupation Labour,
R/o. Wajegaon,
Taluka and District Nanded.
3. Narayan Kishanlal Kutiyawale
Age 40 years, Occupation Labour,
R/o. Wajegaon,
Taluka and District Nanded.
4. Parasram @ Guddu Jagannath Kutiyawale
Age 21 years, Occupation Labour,
R/o. Wajegaon,
Taluka and District Nanded. ... Respondents
.....
Mr. R. D. Biradar, Advocate for the Applicant.
Mr. S. M. Ganachari, APP for Respondent No.1-State.
Mr. Mrigesh D. Narwadkar, Advocate for Respondent Nos. 2 to 4.
.....
CORAM : ABHAY S. WAGHWASE, J.
Reserved on : 30.07.2025
Pronounced on : 11.08.2025
JUDGMENT :
1. The State takes exception to the judgment and order dated
30.11.2004 passed by learned JMFC, III Court, Nanded in RCC No.
859 of 2001, thereby acquitting the present respondents from charge
under Sections 324, 506 r/w 34 of IPC.
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2. The original complainant has also preferred separate revision
application challenging the acquittal as above.
FACTS GIVING RISE TO THE PROCEEDINGS IN TRIAL COURT
3. On 16.06.2001, complainant Gangaram, while was in the
company of his two sons, namely, Pawan and Nitin, was questioned
by the accused for coming into the land and in such background it is
alleged that complainant was assaulted. When his sons came to his
rescue, they were also assaulted and therefore he filed FIR resulting
into registration of crime bearing no. 166/2001 for offences
punishable under Sections 324, 323, 504, 506 r/w 34 of IPC. After
completion of investigation, all three accused were chargesheeted and
tried by learned JMFC vide RCC No. 859 of 2001.
4. In support of its case, prosecution adduced evidence of in all six
witnesses, including the medical expert.
Oral and documentary evidence was appreciated and after
hearing each side, learned trial court, by judgment and order dated
30.11.2004, acquitted the accused. Hence the appeal.
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SUBMISSIONS
On behalf of the Appellant-State as well as the Revisionist-
complainant :
5. Learned APP as well as learned counsel for the revisionist, who
is the original complainant, took this Court through the evidence of
complainant PW2 and would submit that, the FIR was promptly
lodged by this witness. That, he had categorically stated in the
witness box that accused persons initially questioned him and his sons
for coming to the land. Thereafter, when he and his sons went into
the office of one Maroti Nalge, all accused persons came there,
dragged complainant out of the office and, it is alleged that, he was
beaten by means of chain, kicks and fist blows by accused Jagannath
and Guddu. They pointed out that complainant has deposed that even
his sons, who came to save him, were beaten. That, they were taken
to the hospital and examined. Report was lodged promptly. According
to learned APP and learned counsel for the revisionist, the core of the
testimony of complainant regarding assault has remained unshaken in
the cross. They further pointed out that, there is support to the
testimony of PW2 complainant through his sons, who were also
examined. They pointed out that injuries were severe and therefore,
complainant as well as his sons were referred to medical expert who
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ingredients for attracting the charges were available, but only due to
improper appreciation, the trial has ended up in acquittal, and hence
they seek indulgence by allowing the appeal and the revision.
On behalf of the Respondents-accused :
6. In answer to above, learned counsel for the respondents-
original accused would submit that prosecution miserably failed.
That, witnesses are not consistent. That, medical expert has expressed
possibility of injury due to fall, There being civil dispute, parties were
on cross terms and hence, there is false implication. Therefore,
according to him, there is no infirmity or perversity in the
appreciation at the hands of the trial court. He therefore prays to
dismiss the appeal as well as the revision for want of merits.
ANALYSIS
7. Respondents-original accused were chargesheeted for
commission of offence punishable under Sections 324 and 506 of IPC.
Here, though prosecution has examined as many as six witnesses,
crucial evidence is that of complainant PW2-Gangaram and his two
sons i.e. PW3-Pawan and PW4-Nitin.
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8. On re-analysis and re-appreciation, it is emerging that case set
up by complainant is that, when he and his sons were taking round in
their field around 5.00 p.m. on the relevant day, accused persons
questioned him for coming to the field and then, it is alleged that, he
was assaulted by accused causing him bleeding injuries. Even report is
lodged on the same day and prosecution has also, in support of case
of injury, examined medical expert PW6.
9. Specific defence taken by respondents-accused in trial court is
that, there being civil dispute and animosity, there is false
implication; there was no assault as alleged and rather, injuries
suffered by complainant could be self inflicted and complainant
contradicts himself regarding site of alleged assault and injury. That,
no independent witness, in spite of availability, is examined and
though PW3 and PW4 are examined, it is their case in trial court that,
they were not present at the time of alleged occurrence and are thus
got up witnesses and being interested witnesses, case of prosecution
comes under shadow of doubt.
10. On above lines, if evidence of PW2, PW3 and PW4 is put to
minute scrutiny, as submitted, it does emerge that in the FIR,
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complainant has reported that while he alone was roaming in the
field, accused questioned him and thereafter assaulted him by
dragging him out of the office of one Maroti Nalge. At least in the
complaint, he does not refer about his both sons accompanying him at
the time of assault. He has named his son Pawan only to have come to
his rescue and not the other son Nitin. No doubt, it is settled position
that FIR not being encyclopedia and on mere failure to name other
witnesses, case of prosecution cannot be doubted, however, here,
peculiar facts are that, complainant has in his evidence at Exhibit 24
testified about he and his both sons taking round in the field and that
time accused questioning them and initially assaulting him and
thereafter even assaulting his sons. Therefore, there being specific
allegation of assault not only to him, but also to his sons, it was
expected of him to even refer about their presence in the FIR.
However, the same is not appearing so.
11. Even on close scrutiny of complainant’s evidence, it is clearly
emerging that he has attributed questioning to all accused persons
who are in fact three in number. He has not given details about which
amongst the three accused questioned him. There cannot be
questioning in chorus. He, in his evidence, has further stated that
because accused Jagannath was maneuvering cycle chain in his hand,
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out of fright, he went to the office of Maroti Nalge, but accused came
there also and he was allegedly taken out of the office and then
accused assaulted him. He has stated that accused Jagannath,
Narayan and Guddu lifted him and flung him on the floor, accused
Jagannath hit him by means of chain on the right side of his head
whereas, accused Guddu hit him by means chain on the left side of his
head.
In cross, omissions are brought to the extent of he being
accompanied by his sons Pawan and Nitin i.e. PW3 and PW4; accused
persons asking why he came to the land; accused Jagannath
maneuvering or rotating chain; he being pulled out of the office and
flung on the floor. These are material omissions. He claims that his
clothes were also blood stained but unfortunately the same are not
seized and there is no CA report of the same.
12. PW3 and PW4 are sons of complainant and they are examined
at Exhibits 26 and 27 respectively. On scrutiny of evidence of these
two witnesses, it is noticed that PW3 Pawan has not stated about his
father being lifted and then banged on the floor. Though he stated
that accused Jagannath assaulted his father by cycle chain, he has
stated about Guggd taking the chain from Jagannath and assaulting
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his father and thereafter, he and his brother also were assaulted by
fists and blows and they were threatened to kill. Such part of being
threatened to kill is not stated by his father complainant. Even in his
cross, omissions are brought about he accompanying his father and
brother, about Narayan making his father fall.
Likewise, in cross of PW4 Nitin, omissions are brought about he
and his father roaming in the field; accused Jagannath to be armed
with chain and therefore, out of fear, they going to the office of
Maroti Nalge.
13. Therefore, from above evidence of father and his two sons,
their evidence is found to be full of material omissions. As stated
above, complainant had not informed police about he to be
accompanied by his both sons. In the light of their testimony
discussed above, it is doubtful whether they were accompanying their
father.
14. Though learned APP harped on the availability of medical
evidence, according to the complainant, he was assaulted by means of
chain on the right and left side of the head. However, medical
evidence shows injuries suffered on the right frontal region and mid
CriAppeal-663-2005+
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parietal region. Therefore, as stated by learned counsel for the
respondents, though there is medical evidence as well as injury
certificate, it is contrary to the evidence of complainant.
15. As stated above, witnesses have admitted about civil dispute
and previous animosity. There is failure on the part of prosecution to
examine independent witness Maroti Nalge, exactly at whose office
alleged assault is stated to have occurred. No independent witness is
examined. Due to failure of complainant to refer presence of his two
sons PW3 and PW4 in the FIR, there is reason to hold that they are
not party to the alleged occurrence.
16. It is incumbent upon prosecution to discharge the primary
burden of establishing its case beyond reasonable doubt. A slightest
doubt, if crops up, is sufficient to extend benefit to the accused. Here,
as stated above, evidence of complainant and his two sons is not
consistent. Medical evidence does not lend support to the prosecution
version. Recovery of alleged chain is at the instance of accused no.2
Guddu, that too, after two days. Spot is also not proved. Therefore,
there are several aspects which brings case of prosecution under
shadow of doubt.
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17. Perused the judgment. The learned trial court has considered
each and every aspect of the prosecution case as well as the legal
requirements for bringing home the charge, and has rightly reached
to the conclusion about failure of prosecution to prove its case beyond
reasonable doubt and thus, entitlement of accused for benefit of
doubt. Bearing in mind the law laid down by the Hon’ble Apex Court
while dealing with appeal against acquittal, this Court finds no merit
in the appeal.
18. Learned counsel for original complainant has also preferred
revision against acquittal. However, for above reasons, this Court
finds no reason to interfere in revision. Hence, following order is
passed :
ORDER
The Criminal Appeal as well as the Criminal Revision
Application are hereby dismissed.
[ABHAY S. WAGHWASE, J.]
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