Bombay High Court
Balu Bapu Mote vs State Of Maharashtra on 2 March, 2016
Bench: S.S. Jadhav
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO. 604 OF 1996
Balu Bapu Mote.
Age:21 yrs. Occ. Agriculture,
R/o Village Kadoli,
Tal. Hatkanangale,
Dist. Kolhapur. ... Applicant.
Versus
The State of Maharashtra.
(Inspector of Police, Hupri Police
Station, Dist. Kolhapur.) ... Respondent.
---
Mr. J.J. Bardeskar, advocate for appellant.
Mrs. A.A. Mane, APP for State.
---
CORAM : SMT. SADHANA S. JADHAV,J
DATE : MARCH 2, 2016
JUDGMENT:
1 The appellant herein is convicted for an offence punishable
under Section 326 of the Indian Penal Code and sentenced to suffer
S.I. for 6 months and to pay fine of Rs. 500/- I.d. to suffer S.I. for 2
months by the Additional Sessions Judge, Kolhapur in Sessions Case
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No. 27 of 1996 vide Judgment and Order dated 7/9/1996. Hence,
this appeal.
2 Such of the facts which are necessary for the decision of this
appeal are as follows :
The complainant is Bhima Bapu Solase. There was dispute
between the complainant and Balu Mote. A Civil Suit was pending in
the court of Ichalkarnji. It is the case of the prosecution that on
4/5/1995 Bhima Solase was taken to C.P.R. Hospital in an injured
condition. The information was given to the police station. Taking
into consideration the nature of the injury, statement of Bhima Solase
was recorded by Executive Magistrate, Karvir, purportedly to be
treated under Section 32 of Indian Evidence Act. Injured had survived
the attack and hence it was not a statement under section 32 of the
Indian Evidence Act but was only a statement under Section 161 of
the Code of Criminal Procedure, 1973. The injured had disclosed
before the Executive Magistrate that on that day, he had been to
Vithal Birdev Temple. Balu Mote had assaulted him with a knife.
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According to him, there was no scuffle between them on the previous
day of the incident. The date was scheduled in Ichalkaranji court in
respect of litigations of the civil dispute. The dispute was between
Bhima and his cousin. According to the deponent, the present
appellant i.e. Balu Mote had stabbed him at the instance of his
cousins. The said statement was treated as FIR. On the basis of the
said statement, Crime No. 17 of 1995 was registered at Hupari Police
Station.
3 After completion of investigation, charge-sheet was filed on
22/1/1996. The appellant was arrested on 6/6/1995 and was
enlarged on bail. Charge-sheet was filed against the accused for
offence punishable under Section 307 and 120B of the Indian Penal
Code. The case was committed to the Court of Sessions and
registered as Sessions Case No. 27 of 1996. At the trial, the
prosecution examined as many as 10 witnesses to bring home the
guilt of the accused.
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4 It is pertinent to note that majority of the witnesses had resiled
from their earlier statements and were declared hostile by the
prosecution. Not only that, but the complainant who happens t be the
injured witness Bhima Bapu Solase was declared hostile by the
prosecution. Although he had named the assailant in his statement,
he had deposed before the court that some one had assaulted him
from behind and therefore, he could not identify the accused persons.
He refused to identify assailants before the Court. Similarly, eye
witness P.W. 7 Khana Appaji Awagade, who was eye witness to the
statement was also declared hostile. The prosecution was only left
with the statement of P.W. 8 Arvind Raghunath Ghodke who was the
Tahasildar at Karvir who recorded statement of the injured and the
evidence of P.W. 9 Shridhar Pandurang Jadhav happens to be the
investigating officer as well as P.W. 10 Baburao Dnyandev Chavan
who was the police constable who recorded statement of the injured
at the initial stage.
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5 From the fact that all material witnesses were declared hostile,
it can be safely said that the prosecution has failed to prove the guilt
of the accused beyond the reasonable doubt. In fact, the witnesses
are the eyes and ears of the court. Once they resiled from their
statement and refused to cooperate with the investigating agency, it
would be difficult for the Court to only rely upon the medical
certificate and other panchanamas to convict the accused. What
needs to be taken into consideration by the court of law is only legally
admissible evidence. In the present case, it can be said that at the
stage of trial it had turned out to be a case of no evidence.
6 Section 3 of the Indian Evidence Act, 1872 explains what are
facts in issue. It reads thus :
"Facts in issue".--The expression "facts in issue" means and
includes-- any fact from which, either by itself or in connection
with other facts, the existence, non-existence, nature, or extent
of any right, liability, or disability, asserted or denied in any suit
or proceeding, necessarily follows."
The Statute further explains the evidence as follows :
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"Evidence".--"Evidence" means and includes--
(1) all statements which the Court permits or requires to be
made before it by witnesses, in relation to matters of fact under
inquiry,
such statements are called oral evidence;
(2) [all documents including electronic records produced for the
inspection of the Court],
such documents are called documentary evidence.
"Proved".--A fact is said to be proved when, after considering
the matters before it, the Court either believes it to exist, or
considers its existence so probable that a prudent man ought,
under the circumstances of the particular case, to act upon the
supposition that it exists.
"Disproved".--A fact is said to be proved when, after
considering the matters before it, the Court either believes it to
exist, or considers its existence so probable that a prudent man
ought, under the circumstances of the particular case, to act
upon the supposition that it exists.
"Not proved".--A fact is said not to be proved when it is
neither proved nor disproved."
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7 In the present case, the prosecution had introduced the case by
demonstrating that the victim P.W. 6 was injured and that the present
appellant was the author of the said injuries. However, in the present
case, it can be said that the injuries are proved. Since P.W. 6 is
declared hostile, the author of the injuries is not proved. In Criminal
trial, it is not that the fact of injury or incident is to be proved, but the
trial is against the accused persons and if the said identity is not
proved, it can be said that the case would fall into the category of
disproved. In view of the above discussion, the appeal deserves to be
allowed. The appellant deserves benefit of doubt.
8 Hence following order :
ORDER
(i) The Criminal Appeal is allowed.
(ii) The Judgment and Order dated 7/9/1996 passed by the
Additional Sessions Judge, Kolhapur in Sessions Case No. 27/1996
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convicting the appellant for the offence punishable under Section 326
of the Indian Penal Code is hereby quashed and set aside.
(iii) The appellant is acquitted of the charge under Section 326 of
the Indian Penal Code.
(iv) Fine amount if paid to be refunded.
(v) The bail bond stands cancelled.
9 The Criminal Appeal is disposed off accordingly.
(SMT. SADHANA S. JADHAV,J)
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