Siddharth Pandurangji Wankhede vs State Of Maharashtra

G. A. Sanap, J

Heard Mr. Akshay Sudame, learned advocate for the applicants and Mr. A. M. Kadukar, learned Additional Public Prosecutor for the non-applicant/State.

ADMIT. Taken up for final disposal by consent of the parties.

In this revision application, challenge is to the judgment and order dated 27.09.2021, passed by the learned Additional Sessions Judge, Achalpur in Criminal Appeal No. 32/2011, whereby the learned Additional Sessions Judge dismissed the appeal filed by the applicants against the judgment and order passed by the learned Judicial Magistrate, First Class, Court No.2, Achalpur in Summary Criminal Case No. 37/2009, dated 12.05.2011. The learned Magistrate had found the applicants guilty of the offences punishable under Sections 353 and 109 of the Indian Penal Code and sentenced them to suffer simple imprisonment for 15 days and to pay fine of Rs.10,000/- each, in default to suffer simple imprisonment for one month.

Few facts for decision of this revision application, are as follows :-

The informant (PW1), in the year 2008, was working as Senior Clerk in the office of Tahsildar, Achalpur, The members of Akhil Bhartiya Sena had a grievance against the informant on account of his misbehaviour with Smt. Suman Kadu, who had gone to the informant in connection with her work. Since, a complaint was made to the Tahsildar against the informant, the Tahsildar sent peon namely Agrawal with one member of Akhil Bhartiya Sena to call the informant, who had gone to Rohit Internet for obtaining BDS. They brought the informant before the Tahsildar (PW5). It is the case of the prosecution that in presence of the Tahsildar and others, the applicant no.1 abused the informant in filthy language. The members of Akhil Bhartiya Sena, present in the office of the Tahsildar, requested the Tahsildar to suspend the informant. Applicant no.1 declared before the Tahsildar that they would drag the informant out of the office. It is stated that the applicant no.2 caught hold hand of the informant and tried to drag him out of the chamber of the Tahsildar at the instigation of applicant no.1. This incident occurred on 25.08.2008. On the next day i.e. 26.08.2008, at about 17.30 hours, the informant lodged report against the applicants. On the basis of this report, crime bearing No. 84/2008 for the offences punishable under Sections 353 and 109 of the Indian Penal Code, was registered against the applicants.

After investigation, charge-sheet was filed against the applicants in the Court of learned Judicial Magistrate, First Class, Achalpur. The prosecution examined six witnesses. The learned Magistrate, found the evidence sufficient to prove the charge and convicted and sentenced the applicants as above. The applicants preferred a statutory appeal against the judgment and order by the learned Magistrate in the Court of learned Additional Sessions Judge, Achalpur. The learned Additional Sessions Judge concurred with the judgment rendered by the learned Judicial Magistrate, First Class, Achalpur and dismissed the appeal. The applicants being aggrieved by this order, filed this revision.

Learned advocate Mr. Akshay Sudame for the applicants submitted that the learned Judicial Magistrate, First Class, Achalpur and the learned Additional Sessions Judge, Achalpur have committed a mistake in rendering the judgment of conviction. The learned advocate submitted that the evidence on record is not sufficient to prove the charge under Sections 353 and 109 of the Indian Penal Code against the applicants. The learned advocate submitted that there are major inconsistencies in the evidence of most of the witnesses. The learned advocate submitted that evidence of the Tahsildar, namely Anil Bhatkar (PW5) and another witness Naib Tahsildar, namely Vishwanath Ghuge (PW6) is contrary and inconsistent with the informant (PW1). The learned advocate submitted that the Tahsildar (PW5) and Naib Tahsildar (PW6) have not attributed any specific role to applicant nos.1 and 2. The learned advocate submitted that PW5 and PW6 have stated that 25- 30 workers, who had come to the office of Tahsildar, caught hold hand of the informant and abused him. The learned advocate submitted that this evidence is contrary and inconsistent with the evidence of the informant (PW1). The learned advocate submitted that even the informant (PW1) has not attributed any specific role to the applicant no.1. The learned advocate submitted that major inconsistencies and contradictions in the evidence of the eye-witnesses, in the facts and circumstances, create a doubt about the actual occurrence of the incident as sought to be contended.

The second limb of the argument of the learned advocate for the applicants is that the informant (PW1), the Tahsildar (PW5) and Naib Tahsildar (PW6) are the responsible government officers. It is submitted that if the incident of a serious nature, as alleged, had occurred on 25.08.2008 at 3.30 p.m., then report of the same ought to have been lodged immediately. The learned advocate submitted that the informant (PW1) lodged report on the next day i.e. 26.08.2008 at 17.30 hours. The learned advocate pointed out that the reasons for delay, stated in column no.8 of the FIR, would indicate that the delayed report was lodged in connivance and an afterthought. The learned advocate submitted that this aspect has not been dealt with either by the learned Judicial Magistrate, First Class or by the learned Additional Sessions Judge. The learned advocate for the applicants submitted that there is no evidence to prove the ingredients of the offences. It is submitted that the delay has not been properly explained. It is submitted that therefore, the judgment and order passed by the Courts below suffer from patent illegality.

Learned Additional Public Prosecutor for the State submitted that witnesses had no grudge against the applicants and therefore, the possibility of false implication has been completely ruled out. The learned Additional Public Prosecutor submitted that the applicants have admitted their presence on the given date and time in the office of the Tahsildar to make a complaint/grievance against the informant. The learned Additional Public Prosecutor submitted that the Courts below have recorded cogent reasons in support of finding of guilt. In the submission of learned APP, the evidence on record is consistent and therefore, deserves acceptance. The learned APP submitted that evidence of the informant (PW1) has been fully corroborated by the evidence of eye-witnesses PW5 and PW6. The learned APP submitted that concurrent finding of fact recorded on the basis of concrete and cogent evidence does not warrant interference. Learned APP submitted that no illegality has been committed by the Courts below in the matter.

It is to be noted that the scope of revisional jurisdiction is limited. Appreciation of evidence as a matter of course is not permissible. In order to undertake the exercise of re-appreciation of evidence in revisional jurisdiction, it must be established to the satisfaction of the revisional Court that while rendering the decision by the Courts below, patent illegality has been committed or that the order is perverse, inasmuch as there is no evidence to justify such an order.

In order to appreciate the rival submissions, I have minutely perused the judgments passed by the learned Judicial Magistrate, First Class, Achalpur convicting the applicants and the judgment passed by the learned Additional Sessions Judge, Achalpur confirming the said decision. Perusal of the judgments would show that both the Courts below have not considered the aspect of delay in lodging report after 24 hours of the occurrence of the incident. It is to be noted that the informant was working in the office of the Tahsildar. The incident in question, as per the case of the prosecution, occurred in the presence of Tahsildar, Achalpur. In this background, the delay of more than 24 hours to lodge the report assumes significance. In column no.8 of the first information report, the reason for delay has been stated. It was stated that the report was lodged after remark/suggestion of the Tahsildar. It is to be noted that this reason for delay is not at all acceptable. If serious incident, as stated, had occurred in presence of Tahsildar, then immediately the Tahsildar would have instructed the informant to lodge report. It has been suggested to the witnesses in the cross-examination that since the applicants made serious complaint against the informant and there was failure on the part of the Tahsildar (PW5) to take immediate action, the report was lodged to save him from further proceeding. Perusal of the evidence of the witnesses, particularly evidence of the informant (PW1), would show that he has not stated a word about the reason for lodging report after 24 hours. It is to be noted that the reasons for delay in lodging the report are not only required to be stated in the first information report, but are required to be proved by leading evidence. In my opinion, this is the most important aspect. This aspect has not been dealt with. In the context of the nature of incident and the nature of evidence, this fact assumes importance. In my view, this fact goes against the case of the prosecution.

It is to be noted that a finding recorded without evidence has to be termed as illegal and perverse. The question is whether there is evidence to prove the charge against the applicants or not ? Perusal of the evidence of the witnesses would show that the same is vague and cryptic. Evidence of the Tahsildar (PW5 ) and Naib Tahsildar (PW6), who according to the case of the prosecution, were the eye-witnesses to the incident, is inconsistent on material aspect with the evidence of the informant (PW1). The informant (PW1) has stated that the applicant no.1 abused him because he had thrown the papers of a widow by name Suman Kadu. The abuses, according to the informant (PW1), hurled at him were “rqEgh brds ektys dk;-izdj.kkps dkxni=s Qsdrkr”.He has stated that when this conversation was going on, applicant no.2 caught hold his hand and pulled him. This is the only statement made by the informant (PW1) about the incident. His statement would show that no specific role has been attributed to the applicant no.1 at all. He has only attributed some role to applicant no.2. The question is whether the role attributed to applicant no.2 is sufficient to prove the offences against applicant nos.1 and 2 ?

The Tahsildar (PW5) was present in the office when the incident had occurred. In fact, the applicants had made a complaint against the informant to the Tahsildar. In his evidence, the Tahsildar (PW5) has stated about the complaint made by applicant no.1against the informant (PW1). He has stated that after the exchange of words, the party workers caught hold hand of the informant and abused him. They tried to drag him outside his chamber. He has stated that applicant no.1 abused the informant (PW1). The specific abuses have not been stated by him in his evidence. His evidence is silent about the role played by the applicant nos.1 and 2 at the time of the incident. Evidence of the Tahsildar (PW5), therefore, does not corroborate the version of the informant (PW1). His evidence is contradictory and inconsistent with the evidence of the informant (PW1).

The next important witness is Arvind Ghuge (PW6), Naib Tahsildar. In his evidence he has stated that after hearing commotion from the chamber of the Tahsildar, he went to the chamber. He saw that the Tahsildar Bhatkar, informant Joshi, the applicants and 20 - 25 party workers of the applicants were present. He has stated that the applicants abused Mr. Joshi and threatened to beat him. He has stated that the Tahsildar tried to pacify the applicants, however, the applicants tried to drag the informant outside the chamber. Perusal of his evidence would show that he is not supporting the evidence of the informant (PW1) on the actual occurrence of the incident in the manner stated by the informant (PW1). In fact, he has stated that the applicant no.1 as well caught hold the hand of the informant. This is contrary to the case of the prosecution.

In the facts and circumstances, the delay in lodging report creates a doubt about actual occurrence of the incident as narrated by the informant. Besides, there are major inconsistencies and contradictions in the evidence of the witnesses, who according to the prosecution, were present on the spot and saw the incident. No independent witness has been examined to corroborate the evidence of the witnesses. In my view, the evidence of prosecution witnesses, prima facie, appear to be unreliable. The evidence is not sufficient to prove the incident in question. In the facts and circumstances, I conclude that this revision deserves to be allowed. Hence, the following order :

ORDER

The Criminal Revision Application is allowed.

The order of conviction and sentence passed by the learned Judicial Magistrate, First Class, Court No.2, Achalpur in Summary Criminal Case No. 37/2009, dated 12.05.2011, is set aside. Similarly, the judgment and order, dated 27.09.2021 passed by the learned Additional Sessions Judge, Achalpur in Criminal Appeal No. 32/2011 confirming said conviction and sentence, is also set aside.

The applicants are acquitted of the offences punishable under Sections 353 and 109 of the Indian Penal Code.

The fine amount deposited by the applicants be refunded to them.

The revision application stands disposed of in above terms.