Criminal Appeal No. 220 of 1995,Cri. Rev. Appln. No. 182 of 1994

26th September, 2005

Petitioner Counsel: Shri. T. A. MIRZA
Respondent Counsel: Shri. A. V. GUPTA

JUDGMENT

R. C. CHAVAN, J.: - Taking exception to the acquittal of Respondent Nos.1 and 2 by the learned Sessions Judge, Wardha, for the offence punishable under Section 307 read with Section 34 of the Penal Code, the State has preferred this appeal and the victim has preferred this revision petition.

2. Facts, which led to prosecution of the two respondents, are as under :-

3. On 14-10-1990, at about 7 p.m., Eknath Bhagat was sitting in the shop of one Dilip Fulzele. The two accused persons - Vasant and Devidas - came there and attacked Eknath with an iron pipe, causing serious bleeding injuries on his head and leg. Eknath was taken to General Hospital at Wardha. On the report by Eknath's wife Rukmini, an offence was registered.

4. In the course of investigation, police secured medico-legal certificate of Eknath, which showed that he had sustained three incised wounds. After treatment, Eknath was discharged from the hospital. Police performed panchanama of spot, seized an iron pipe produced by accused No.1 Vasant, seized clothes of Eknath, sent the property attached to the Forensic Science Laboratory, recorded the statements of witnesses and on completion of investigation, arrested and charge-sheeted the accused before the learned Judicial Magistrate, First Class, Hinganghat.

5. The learned Judicial Magistrate, First Class committed the case to the Court of Sessions on finding that the accused allegedly committed offence punishable under Section 307 of the Penal Code triable exclusively by the Court of Sessions. Upon consideration of the material before him, the learned Sessions Judge, Wardha, charged both the respondents of offence punishable under Section 307 read with Section 34 of the Penal Code for having launched a murderous attack on Eknath. Both the accused pleaded not guilty and hence were tried before the learned Sessions Judge.

6. The prosecution examined in all 8 witnesses in its attempt to bring home the guilt of the accused. Upon consideration of the prosecution evidence in the light of defence taken, namely that the accused had been falsely implicated due to previous enmity, the learned Sessions Judge held that the prosecution had failed to prove the charge levelled and hence acquitted the respondents. Aggrieved thereby, the present appeal and the revision have been filed.

7. We have heard Adv. Shri. T. A. Mirza, the learned Additional Public Prosecutor for the State. None was present for the revision-petitioner. We have also heard Adv. Shri. A. V. Gupta for the respondents/accused. With the help of both the learned counsel, we have gone through the evidence on record and re-appraised the entire evidence.

8. PW-1 Dr. Patil had examined victim Eknath. His certificate is at Exhibit 23. It shows that there were three incised wounds over the left parietal region and a contusion just below the knee joint. According to Dr. Patil, the incised wounds could have been caused by hard and sharp object, whereas the contusion could have been caused by hard and blunt object. Dr. Patil had stated that the contusion, which he had observed, could have been caused by an iron pipe.

9. Dr. Patil also claimed to have examined one Ashok Mankar, who had suffered a contusion over the back of left side. Certificate issued in respect of Ashok Mankar is at Exhibit-24. According to Dr. Patil, the injuries could have been caused by hard and blunt object like iron pipe (Article 11) before the Court. Ashok Mankar was examined as PW-4 and had claimed that accused No.2 Devidas had assaulted Ashok with the pipe. However, there is no charge in respect of the injury caused to Ashok. It may be seen from the evidence of Dr. Patil that the incised wounds observed on Eknath by Dr. Patil could not have been caused by iron pipe.

10. PW-3 Eknath, the victim, had stated that the accused persons attacked him by an iron pipe. In cross-examination, he denied the suggestion that accused Vasant was called in the shop by shop-keeper Dilip, that thereupon Eknath uttered abusive words, and that an exchange of words followed and that he fell down on the stone steps. The witness, however, stated that he fell down due to beating by the accused. He stated that when he was attacked by the accused, Dilip and Vitthal were the only two persons present in the shop.

11. PW-3 Eknath stated that he was the Sarpanch of the Village in 1966-67, whereas accused Vasant was the Sarpanch at the time of the incident. There is no word in the evidence of Eknath about the assault on Ashok (PW-4).

12. PW-4 Ashok stated that accused Vasant and Devidas were proceeding from S.T. Stand to their houses, saw Eknath in the shop of Dilip Fulzele and attacked Eknath with an iron pipe. He stated that he and Arun went to the rescue of Eknath. Arun has not been examined as a witness. He stated that when he was trying to rescue Eknath, accused No.2 Devidas gave a blow of iron pipe on his back. Though he stated that he was not in a position to identify the pipe, which was used in assault, he claimed that Article No.11 before the Court was not the same iron pipe. In cross-examination, he denied having stated that Eknath was standing in the grocery shop of Dilip and also that Vasant gave one blow by iron pipe on Eknath.

13. PW-5 Baba stated that he was serving in the shop of Dilip Fulzele. At about 7 or 7.30 p.m., accused Vasant and Devidas came to the shop of Dilip and hit Eknath Bhagat with iron pipe. He stated that Article No.11 before the Court was the same iron pipe with which Eknath was attacked. He too does not state anything about any assault on Ashok and does not even refer to the presence of Ashok (PW-4). It may be recalled that it is the defence version that quarrel began because PW-3 Eknath used abusive words when Dilip called Vasant to take Supari (betel-nut). PW-5 Baba contradicted the portions of his police statement, which would have supported the defence version. These portions have been duly proved by PW-8 Laxman at Exhibits 50/1 and 50/2.

14. Dilip Fulzele, in whose shop the incident took place, was examined as PW-6. He states that when Eknath was in his shop at about 7 or 7.30 p.m. on 14-10-1990, both the accused came to the shop and beat up Eknath. Eknath then shouted. He too contradicted the portion in his police statement, which would have corroborated the defence version and it was duly proved by Investigating Officer PW-8 PSI Fulzele at Exhibit 51. His evidence also does not refer to presence of PW-4 Ashok or any assault on Ashok.

15. PW-7 Sitaram proved seizure of clothes of accused vide Exhibits 43 and 44. These clothes were sent by PW-8 Fulzele to the Forensic Science Laboratory, report whereof is at Exhibit 48. The report shows that there was no blood on the clothes seized from the accused. Thus the evidence of PW-7 Sitaram regarding seizure of clothes is absolutely unhelpful.

16. Investigating Officer PSI Fulzele was examined as PW-8. He also proved FIR at Exhibit 47. He proved the contradictions in the police statements of prosecution witnesses. After considering this evidence, the learned Trial Judge concluded that the prosecution failed to prove the charges. First, the medico-legal certificate in respect of Eknath at Exhibit 23 shows three incised wounds, which could not have been caused by iron pipe. There is no case of any assault by any other implement. Therefore, the story of assault by the accused by iron pipe appeared to be doubtful to the learned Trial Judge. Secondly, PW-4 Ashok, who had claimed to have sustained injury in the same transaction, too did not mention that any other instrument was used. Further, he refused to identify Article No.11 before the Court to be the same pipe, which was used in assault. The presence of PW-4 Ashok at the spot has not been deposed to by PW-3 Eknath, PW-5 Baba and PW-6 Dilip, who were the eye-witnesses.

17. PW-3 Eknath does not give any reason for the two accused to launch an attack on him. The reasons suggested to him in cross-examination were denied by him. The police statements of Baba and Dilip would indicate that the incident occurred because of abusive words used by PW-3 Eknath. However, these witnesses have contradicted that part of the police statement and the contradictions have been duly proved by PW-8 PSI Fulzele, making the reliability of these two witnesses doubtful. The clothes or the pipe seized did not have any blood stain, as may be seen from the report of the Laboratory at Exhibit 48. In view of this, it may be reasonable to infer that Eknath was not telling the whole truth about the incident.

18. Considering all these aspects, we find that the conclusions drawn by the learned Sessions Judge are proper and that the prosecution did not prove the guilt of the accused.

19. Consequently, we find no merit in the appeal as well as in the criminal revision application and dismiss the same. Bail bonds, if any, furnished by the respondents shall stand cancelled.

Appeal dismissed.