Bombay High Court
Shivram Tukaram Surwase vs State Of Maha & Ors on 9 June, 2016
Bench: N.W. Sambre
crirev277.03
(1)
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
CRIMINAL REVISION APPLICATION NO. 277 OF 2003
Shivram Tukaram Surwase,
Age: 64 yrs., Occ: Agril.,
R/o: Kambalga, Tq.: Shiruranantpal,
Dist. : Latur ..APPLICANT
VERSUS
1. The State of Maharashtra
2.
Uttam Vithal Shinde,
Age: 46 yrs., Occ: Agril.
3. Waman Vithal Shinde,
Age: 49 yrs., Occ: Agril.
4. Umakant Pundlik Shinde,
Age: 29 yrs., Occ: Agril.
5. Tukaram Apparao Shinde,
Age: 29 yrs., Occ: Agril.
6. Kamlakar Laxman Shinde,
Age: 44 yrs., Occ:Agril.
7. Sulabai w/o Waman Shinde,
Age: 44 yrs., Occ: H.H.
8. Dnyandeo Shrihari Shinde,
Age: 29 yrs., Occ: Agril.
Respondent Nos. 2 to 8
R/o: Kambalga, Tq. Shriruranantpal,
District : Latur ..RESPONDENTS
Mr D. A. Mane, Advocate holding for Mr Milind Patil, Advocate for
applicant;
Mr S. Y. Mahajan, Addl. Public Prosecutor for respondent No. 1;
Mr N. D. Kendre, Advocate holding for Mr V. V. Temke, Advocate for
respondent Nos. 2 to 8
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crirev277.03
(2)
CORAM : N.W. SAMBRE, J.
DATE : 9th June, 2016
JUDGMENT :
The present revision application is against the order of acquittal,
passed on 8th May, 2003, by the learned Judicial Magistrate First Class,
Nilanga, in Regular Criminal Case No. 29 of 1999.
2.
The present applicant preferred a complaint at Exh. 54, alleging
that all the accused persons, on 28 th October, 1998, assaulted him with
axe, sticks and fist blows. The said complaint had resulted into registration
of Crime No. 81 of 1998, against the accused persons for offences
punishable under Sections 325, 323, 149 and 148 of the Indian Penal
Code.
3. After registration of the offence, P.S.I. Thite carried out investigation
and pursuant to the charge-sheet against the accused persons, charge
came to be framed at Exh. 41.
4. In support of the complaint, the complainant himself deposed at
Exh. 53. He has stated in his deposition that the accused persons had
assaulted him on the parts of his body by the respective weapons. So as to
substantiate his case, the complainant also examined his son Laxman at
Exh. 60 and Medical Officer at Exh. 73.
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5. While assailing acquittal, Mr Mane, learned Counsel appearing on
behalf of the applicant would urge that the learned Court below has
committed an error by acquitting accused persons, as the cumulative effect
of the evidence of witnesses, is not taken into account by the learned Court
below. He would then submit that the evidence of the other witnesses,
namely, Kanta surwase and Ramchandra is not considered by the learned
Court below and unnecessary and undue weightage has been given by the
learned Court below to the narration in the first information report i.e. Exh.
54. He would then submit that this Court should reverse the acquittal and
order conviction of the accused persons.
6. With the assistance of the learned Counsel for the respective
parties, I have perused the papers as are brought before me, in relation to
deposition and other material. It is required to be noted that the case in
hand is almost based on the incident, which occurred some 18 years back.
The narration speaks of the assault on the complainant by the accused
persons, who are from same family, as the bullock of the accused Waman
had attacked the bullock of the complainant.
7. From the record, it depicts that the incident in question had occurred
in late hours i.e. at about 9.00 p.m. Perusal of the complaint at Exh. 54
does not depict any clarification or details, as to the weapons used by each
of the accused persons and the act attributed to each of them. The same
was sought to be clarified by the accused in their deposition before the
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Court.
8. It is then required to be noted that, what is recovered in the present
crime is an axe from accused Uttam, pursuant to the provisions of Section
27 of the Indian Evidence Act. The alleged happening of incident, during
the investigation, is not noted to be witnessed in the light of electric bulb.
The complainant claimed that he became unconscious after he was
assaulted by the accused persons and in view there of, in my opinion, the
acquittal based on the above referred reasons, particularly after a period of
about 18 years, does not call for any reversion.
9. One more aspect of which this Court must take note of is that
Laxman, son of complainant, examined at Exh. 60, is not an eye witness to
the incident in question, however, he had claimed that he reached to the
spot, after he came to know from one Bharat Jadhav about assault on his
father. Admittedly, Bharat Jadhav is not examined in the present case. It
is the fact that, the Investigating Officer in the present case, is not
examined by the prosecution. Apart from above, it is required to be noted
that the Investigating Officer speaks that the complainant approached him
on his own, with a police memo. Though Doctor has certified the injuries of
the complainant, however, the material to draw an inference with this
injuries could be due to the respondents-accused, cannot be confirmed.
Though an axe is recovered from accused Uttam, however, Medical Officer
certified said at Exh. 74, speaks of two incised wounds on the head of the
complainant, and the said incised wounds are not explained by the
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complainant or the prosecution.
10. The complainant has tried to prove his case, based on his own and
his son Laxman's evidence. The evidence of son, in my opinion, is rightly
discarded by the learned Court below, as he, being not an eye witness to
the incident. The conviction, as is sought by the complainant, is based on
his testimony, is also required to be rejected, as the investigation as is
carried out, is not proved by examining the Investigating Officer.
11. In the above background, no case for interference, in exercise of
revisional jurisdiction is made out. Criminal Revision Application fails and
same stands dismissed.
(N.W. SAMBRE, J.)
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