J-REVN-9-10 1/8
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR.
CRIMINAL REVISION APPLICATION NO.09 OF 2010
Dwarkabai w/o Vithoba Nagre,
aged about 55 yrs, Occ. Agriculturist,
R/o at village Khalegaon,
Tah. Lonar, Dist. Buldhana. ... Applicant.
-vs-
1. The State of Maharashtra,
Through Police Station Officer,
Mehkar Police Station, Tah. Mehkar,
Dist. Buldhana
2. Ananda s/o Narayan Nagre,
aged about 48 years,
Occupation Agriculturist,
R/o at village Khalegaon,
Tah. Lonar, Dist. Buldhana ... Non-applicants.
Shri N. B. Kalwaghe, Advocate for applicant.
Ms G. Tiwari, Additional Public Prosecutor for non-applicant No.1/State.
Shri K. P. Sadawarte, Advocate for non-applicant No.2.
CORAM : A. S. CHANDURKAR, J.
DATE : October 30, 2017 Oral Judgment :
The applicant is the informant who has filed the present revision application under Section 401 of the Code of Criminal Procedure, 1973 challenging the judgment of the appellate Court in Criminal Appeal No.25/2006 whereby the said appeal preferred by non-applicant No.2 herein ::: Uploaded on - 03/11/2017 ::: Downloaded on - 04/11/2017 01:17:47 ::: J-REVN-9-10 2/8 has been allowed and his conviction as recorded by the trial Court has been set aside.
2. Case of the prosecution is that when the applicant was standing in her agricultural field at about 11.30 am, a pair of bullocks owned by non- applicant No.2 entered her field and destroyed her chilli crop. The applicant attempted to drive the bullocks out of her field but she was restrained by non-applicant No.2 who then assaulted her with a stick on her thigh, head and ribs. She sufferred injuries on her head. Her nephew and sister-in-law came to rescue her but they were also beaten by non-applicant No.2. The applicant therefore lodged report after which she was given medical treatment. On the basis of this report a crime was registered. The non- applicant No.2 was charge-sheeted for the offence punishable under Section 323 of the Indian Penal Code along with Sections 163 and 164 of the Maharashtra Village Panchayats Act, 1958. The non-applicant No.2 did not plead guilty and was thus tried. At the conclusion of trial, non-applicant No.2 was convicted for the aforesaid offence. He was sentenced to suffer rigorous imprisonment for three months and to pay fine of Rs.300/-. The non-applicant No.2 being aggrieved challenged this judgment of conviction by filing an appeal. The appellate Court allowed said appeal and set aside the order of conviction. Being aggrieved the informant/victim has filed the present revision application.
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3. At the outset Shri N. B. Kalwaghe, learned counsel for the applicant on instructions submitted that the present revision application was being pursued in so far as it acquitted the non-applicant for the offence punishable under Section 323 of the Penal Code. He fairly submitted that acquittal of non-applicant No.2 for offence punishable under Sections 163 and 164 of the Maharashtra Village Panchayats Act, 1958 appears to be reasonable. It was submitted that the trial Court after proper appreciation of the entire evidence on record had rightly found that the non-applicant No.2 was guilty of having committed an offence under Section 323 of the Penal Code. The appellate Court by overlooking the material evidence proceeded to acquit the non-applicant No.2. It was submitted that though the Investigating Officer had been examined as PW-6, the appellate Court in paragraphs 15 and 16 observed that the Investigating Officer had not been examined. It was then submitted that absence of any medical report or failure to examine the Medical Officer could not be a ground for acquitting the non-applicant No.2. The injuries sustained by the applicant stood admitted in view of the suggestions given on behalf of the non-applicant No.2 in the deposition of prosecution witnesses. It was then submitted that the offence alleged being under Section 323 of the Penal Code, it was sufficient that hurt was caused to the applicant. It was only when there was an allegation as to grievous hurt being caused that medical evidence in that regard was necessary. He further submitted that material evidence with ::: Uploaded on - 03/11/2017 ::: Downloaded on - 04/11/2017 01:17:47 ::: J-REVN-9-10 4/8 regard to the relations between the accused and the victim had not been properly appreciated resulting in passing of the order of acquittal. The so called omissions in the deposition of the prosecution witnesses were not proved by the Investigating Officer. Relying upon the judgment of Honourable Supreme Court in Ram Briksh Singh and ors vs. Ambika Yadav and anr. (2004) 7 Supreme Court Cases 665, it was submitted that if the judgment of acquittal is rendered by overlooking material evidence, a case is made out for remand of the case for reconsideration. According to learned counsel the appeal deserves to be remanded to the appellate Court for being reconsidered.
4. Shri K. P. Sadawarte, learned counsel for non-applicant No.2 supported the impugned judgment. According to him the appellate Court after considering the entire evidence on record rightly acquitted the non- applicant No.2. The view taken by the appellate Court was a possible view of the matter and the appeal should not be remanded merely to grant another opportunity to the prosecution to prove its case. He referred to the evidence on record to submit that the case of the victim has not been corroborated by other witnesses. Most of the witnesses were related to the applicant. The suggestions given in the cross-examination as regards injuries sufferred by the victim were for bringing on record contradictions. The Medical Officer was required to be examined but the same was not done. Similarly, medical ::: Uploaded on - 03/11/2017 ::: Downloaded on - 04/11/2017 01:17:47 ::: J-REVN-9-10 5/8 report indicating injuries sufferred was also not placed on record. It was therefore submitted that there was no reason whatsoever to interfere with the impugned judgment. In support of this submissions, the learned counsel placed reliance on Panalal Damodar Rathi v. State of Maharashtra AIR 1979 SC 1191, Tukaram Rama Patil vs. Pandharinath Narayan Patil and ors. 2007 ALL MR (Cri) 1911 and Rajkumar s/o Dagadu Jadhav vs. State of Maharashtra 2012(4) Mh.L.J. (Cri) 652.
Ms G. Tiwari, learned Additional Public Prosecutor for non- applicant No.1/State also supported the impugned judgment. In reply it was submitted on behalf of the applicant that the prosecution having supported the impugned judgment, there was substance in the observations of the trial Court that the prosecution had favoured the accused.
5. I have heard the learned counsel for the parties at length and with their assistance, I have perused the material placed on record. The present revision application having been filed by the victim who is aggrieved by the judgment of acquittal, it is necessary to refer to the parameters as laid down by the Honourable Supreme Court in Ram Briksh Singh and ors. (supra) as to the broad parameters when an order of acquittal could be interfered with and proceedings deserve to be remanded. It was held in the aforesaid case that if the Court has overlooked the evidence with regard to material circumstances then an order of remand for retrial to the trial Court could be ::: Uploaded on - 03/11/2017 ::: Downloaded on - 04/11/2017 01:17:47 ::: J-REVN-9-10 6/8 made. As noted above in the present case the submission is that the proceedings deserve to be remanded to the appellate Court for reconsideration of the appeal. The trial Court after considering the evidence on record accepted the evidence led by the prosecution for holding that it had proved its case. It relied upon the depositions of PW-1 and PW-4. It further held that there was no previous enmity between the accused and the victim. Failure to examine the Medical Officer was not held very material on the ground that injuries had been sustained by the victim and the witnesses.
The appellate Court found that injury certificates of PW-1, PW-2 and PW-5 were not placed on record. Similarly, the Medical Officer as well as the Investigating Officer had not been examined. The blood stained clothes of the victim as well as the stick used in the assault were also not brought on record. On the basis of contradictions in the evidence, it was held that the case was not proved beyond reasonable doubt.
6. It is not necessary to re-examine the entire evidence in exercise of revisional jurisdiction under Section 397 read with section 401 of the Code. The question is whether the evidence on record that is material in nature has been overlooked while acquitting the non-applicant No.2. As per the report lodged by the applicant, she was assaulted by a stick by the non-applicant No.2. As a result she sustained bleeding injuries. The blows were given on her thigh, head and ribs. Though it is true that the offence alleged is under ::: Uploaded on - 03/11/2017 ::: Downloaded on - 04/11/2017 01:17:47 ::: J-REVN-9-10 7/8 Section 323 of the Penal Code, the weapon of assault has not been seized. According to the applicant she first went to the police station and thereafter to the hospital where she was treated. According to PW-2, after the applicant was hit, she was lifted and brought to her house. The victim and witnesses then went to the Government Hospital and thereafter to the Police Station. PW-6 who is the Investigating Officer does not depose about referring the victim and injured witnesses for medical treatment. Thus, the evidence regarding undertaking medical treatment is not consistent. Similarly, in so far as PW-5 Santosh is concerned, it is stated by PW-2 that the non-applicant No.2 hit Santosh on the backside of his neck. However, said PW-5 Santosh in his cross-examination admitted that he had received a forceful blow of the stick on his neck from front side. He was also examined by the Medical Officer. Hence, there is no corroboration on this count.
7. In the light of aforesaid nature of evidence, absence of medial report as well as failure to examine the Medical Officer is of material relevance. The stick used in the offence has not been seized. The suggestions given in the cross-examination are not of such nature that would substantiate the case of the prosecution. On the contrary various material contradictions have been brought on record. Though it is true that the Investigating Officer was examined as PW-6, merely because it is stated otherwise in the impugned judgment, that by itself would not vitiate the said ::: Uploaded on - 03/11/2017 ::: Downloaded on - 04/11/2017 01:17:47 ::: J-REVN-9-10 8/8 judgment. I find that the appellate Court has taken into consideration the entire evidence on record and it cannot be said that it has overlooked any material evidence on the basis of which revisional jurisdiction could be exercised. Moreover, certain answers given in the examination of non- applicant No.2 in his statement under Section 313 of the Criminal Procedure Code also cannot be the reason for holding that the appellate Court has overlooked the material evidence.
8. Thus considering the entire material on record and in the light of law laid down in the decisions relied upon, I do not find any case having been made out for remanding the proceedings for fresh consideration to the appellate Court. The appreciation of evidence while acquitting the non- applicant No.2 cannot be said to be perverse.
In view of aforesaid, I do not find any merit in the revision application. It is accordingly dismissed.
JUDGE Asmita ::: Uploaded on - 03/11/2017 ::: Downloaded on - 04/11/2017 01:17:47 :::