MARUTI Vs. STATE OF MAHARASTRA

JUDGEMENT

(1.) THIS is a revision application filed by the petitioner original accused against the order passed by the learned Sessions Judge, Bhri, dated 33-1976 dismissing the appeal and ordering the appellant, that is, the petitioner to surrender to his bail, from the order of conviction in Criminal Case No. 11 of 1975 which was decided by the Judicial Magistrate, First Class, Ashti on 27th November, 1975 whereby the learned Magistrate convicted the accused for the offence Under Section 85 (1) of the Bombay Prohibition Act and sentenced him to suffer R. I. for one month and to pay a fine of Rs. 200/-in default to pay the fine, to suffer one month's R. I. more.

(2.) ORDINARILY this Court would not go into the evidence for the purpose of appreciating it in criminal revision application, especially when there are concurrent findings on questions of fact, by both the lower Courts. I would have followed this ordinary course, but Mr. Deshpande appearing for the petitioner submitted that this is not a case where it is a question of appreciation of evidence, but this is a case where there is no evidence whatsoever for the purpose of establishing the guilt Under Section 85 (1) of the Prohibition Act, as modified upto 15th September 1972 and he submitted that even if the entire version given by the P. S. I. , who is the only witness examined by the prosecution, besides the doctor, is accepted in toto and that evidence does not show that accused had behaved in a disorderly manner. At the most, it would show that the accused was under the influence of the drinks and could not take care of himself. He submitted that according to the accused no such incident had ever taken place but because of certain grudge which the P. S. I had against the accused, this case had been filed against him. He further submitted that as a matter of fact, though there were three other police constables present at the time of the incident, none of them has been examined. He submitted that according to the prosecution, the incident has taken place at the police station between a police constable and the P. S. I and it was witnessed by persons who were in the police station, viz. , persons locked up, besides the police constables who were on duty. One of the persons who was in the lock up, viz. Habib Hussein had been examined as a defence witness by the accused and he has supported the defence that no such incident has ever taken place. He submitted that in the crossexamination of the P. S. I suggestions were made that the P. S. I main witness for the prosecution was bearing a grudge because there was an enquiry held against the P. S. I and in that enquiry the petitioner had been called as a witness. But these suggestions are not admitted and not proved by calling any documentary evidence or in any other manner.

(3.) IF it were a mere appreciation of evidence between the prosecution evidence and the defence version as led by the defence witness Habib Hussein, I would not have interfered because both the lower Courts have decided as a finding of fact that the evidence led by the defence was not reliable, nor I would like to act on the suggestion of the Petitioner that this prosecution was filed falsely without any basis because of the grudge borne in mind by the P. S. I against the Petitioner. There is one more suggestion made to the P. S. I that belonging to the community to which he belonged, he had shown partiality in the conduct towards his inferior staff, but that also remains a suggestion, which has been denied by the P. S. I. These suggestions though made not having been accepted to the satisfaction of the lower Courts, and both the lower Courts as a finding of fact have come to the conclusion that the accused has not been able to shake the evidence, I do not think, sitting in revision, I would reappreciate the defence evidence and consider whether these suggestions require any consideration for the purpose of decision of this matter.