Bombay High Court
State Of ... vs Radhelal Ishwardayal Harinkhede ... on 2 December, 2016
Bench: V.M. Deshpande
1 apeal342.01.odt
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH AT NAGPUR
CRIMINAL APPEAL NO.342/2001
State of Maharashtra, through
Police Station Officer, MIDC,
Nagpur .....APPELLANT
...V E R S U S...
1. Radhelal s/o Ishwardayal Harinkhede,
aged about 33 years.
2. Ramesh @ Rameshwar s/o Ishwardayal
Harinkhede, aged about 41 years,
Both r/o Ekatmata Nagar, Gramin,
Zopadpatti, P. S. MIDC, Nagpur ...RESPONDENTS
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Mrs. A. R. Kulkarni, A.P.P. for appellant.
Mr. D. G. Patil, Advocate for respondents.
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CORAM:- V. M. DESHPANDE, J.
DATED :- 02.12.2016
J U D G M E N T
1. This is an appeal preferred by the State against the
judgment and order of acquittal passed by the learned J.M.F.C. 9 th
Court, Nagpur dated 31.07.2001 in Regular Criminal Case
No.249/1999, acquitting the respondents who were accused nos. 1
and 2 of the offence punishable under Section 324 read with
Section 34 of the Indian Penal Code.
2. Heard Mrs. Kulkarni, learned A.P.P. for the appellant-
State and Mr. Patil, learned counsel for the respondents. With
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their able assistance, I have gone through the record and
proceedings.
3. The FIR is lodged by Parvatibai (PW1). The report is at
Exh.-6. On the basis of the said report, PSI Lilhare of P.S. M.I.D.C.
sent Parvatibai for her medical examination. Bhagwat Sonwane
(PW7) registered the offence vide Crime No.159/1999 for the
offence punishable under Section 324 read with Section 34 of the
IPC. The printed FIR is at Exh.-7. The Investigating Officer
Bhagwat Sonwane completed the investigation and filed the
charge-sheet.
4. According to the FIR, the complainant-Parvatibai is
labour and her husband runs a cobbler shop at Gopal Nagar,
Nagpur. On the date of incident i.e. on 17.07.1999, she noticed
that haththela of her husband was thrown away by respondent
no.2-Ramesh. Therefore, she made inquiry as to why the same
was thrown. That time, he slapped her son and when she raised
question over the same, he started using filthy language. In the
meantime, Radhelal, the respondent no.1 assaulted her on her left
hand, head and left leg.
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5. From the evidence of Dr. Haribhau Phuphate (PW6), he
examined Parvatibai and noticed the following injuries:
"1. Incised wound over left hand base of the thumb
3" X 0.5 " (size of injury)
2. Lacerated wound over left forearm ulnar side of
0.5"
3. Contusion over left side parital rigion.
4. Lacerated wound with abrasion, high parital
region, superficial."
According to the Doctor, the injury nos.1 and 2 are
caused by sharp object whereas injury nos. 3 and 4 are caused by
hard and blunt object. The injury certificate is at Exh.-14.
6. The prosecution has examined one Ganpat. His
evidence would show that respondent no.1 assaulted by means of
wooden stick. However, his statement from the witness box is
proved to be an omission.
7. The other witness is Ashok Ninawe (PW3). He is not
corroborating the complainant that Radhelal gave a stick blow. His
evidence shows that the accused Ramesh has given a slap to
complainant-Parvatibai. However, it is brought on record that he
has a cross term with the respondent no.2-Ramesh. Therefore,
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false implication at his behest cannot be completely ruled out.
Another witness is Shankar Thakare who deposed that the accused
gave stick blow on his hand. Another witness is one Ramsingh,
the brother of the complainant-Parvatibai, who stated on oath that
his sister was beaten by Radhelal by wooden rafter. It is to be
noted that in her evidence or in the FIR, the complainant Parvtibai
is very specific that she was beaten by wooden the stick. The
Investigating officer states that he seized wooden rafter having
nails from accused no.1 from his house on 18.07.1999.
8. As per the inured, she was assaulted by means of
wooden stick. She has not referred that she was assaulted by
rafter. The injury certificate and the evidence of the Doctor shows
that the injury nos. 1 and 2 can be caused by sharp weapon. The
rafter, which was seized by the Investigating Officer, shows that
that it was having hails. However, for the reason best known to
the Investigating Officer, the said rafter was not referred by him to
the Doctor for seeking his opinion as to whether the injury nos. 1
and 2 can be caused by the said nails. Further, the learned Judge
in the judgment observed that the weapon was not brought to the
Court when Parvatibai (PW1) was under cross-examination,
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thereby denying the valuable right of cross-examination to
defence.
9. The learned trial Court has considered the various
contradictions appearing in evidence of the prosecution witness
and in my view, rightly. By now, the law is well crystallized for
dealing with an appeal against acquittal. The learned A.P.P. was
unable to point out any perversity in the impugned judgment.
Merely because another view is possible, that by itself is not
sufficient for substituting the appellate Court's view in place of the
view taken by the learned trial Court, unless the view of the trial
Court is perverse and is impermissible on the basis of available
evidence on record.
10. In my view, the learned trial Court has given correct
reasoning while acquitting the accused persons. Hence, the appeal
is dismissed.
JUDGE
kahale
