Bombay High Court
Santosh S/O Vasanta Khandare vs State Of Mah. Thr. P.S.O. Pusad ... on 26 September, 2016
Bench: V.M. Deshpande
1 revn15.11.odt
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH AT NAGPUR
CRIMINAL REVISION NO.15/2011
Santosh s/o Vasanta Khandare,
aged about 28 years, r/o Village Kanha,
Tq. Pusad, Dist. Yavatmal. .....APPLICANT
...V E R S U S...
State of Maharashtra, through
Police Station Officer, Pusad Rural Police
Station, Tq. Pusad, Dist. Yavatmal ...NON APPLICANT
-------------------------------------------------------------------------------------------
None for the applicant.
Mr. M. N. Ekre, A.P.P. for non applicant-State
-------------------------------------------------------------------------------------------
CORAM:- V. M. DESHPANDE, J.
DATED :- 26.09.2016
ORAL JUDGMENT
1. The legality and correctness of judgment and order of
sentence passed by the learned 1st Ad hoc Assistant Sessions
Judge, Pusad dated 30.09.2004 in Sessions Trial No.72/2002
confirmed by the learned Additional Sessions Judge, Pusad in
Criminal Appeal No.16/2004 dated 31.01.2011 by which the
conviction of the applicant for the offence punishable under
Section 307 of the Indian Penal Code and sentence stands
confirmed, is questioned in the present revision.
2. When the matter was called out for final hearing, the
learned counsel for the applicant chose to remain absent. I have
2 revn15.11.odt
heard Mr. M. N. Ekre, learned A.P.P. for the State/non applicant in
extenso and with his able assistance, I have gone through the
record and proceedings of the sessions trial.
3. When Gulab Dambhare (PW8) was on Station Diary
duty at Police Station, Pusad (Rural) on 02.08.2002, that time
Rukhmini (PW1) came to the police station and lodged her oral
report, Exh.20. On the basis of the said oral report Gulab
Dambhare registered an office vide Crime No.88/2002 for the
offence punishable under Section 307 read with Section 34 of the
IPC against the present applicant and his parents. The case diary
of the said crime was entrusted to PSI Hirasingh Rathod (PW9).
The gist of the FIR is that the first informant is engaged
in tailoring business. She resides with her family. Her husband is
Kailash (PW6). Vandanabai Khandare, mother of the applicant is
also engaged int the tailoring business. On 02.08.2002 at about
7.30 p.m., when the first informant and her husband were present
in her house, the applicant, who resides adjacent to the house of
the first informant, came in front of the house of the first
informant and picked up the quarrel with her on the ground that
due to the first informant, the tailoring business of his mother is
3 revn15.11.odt
greatly suffered. When the first informant was pacifying the
present applicant, that time her husband Kailash (PW6) stepped
outside the house and at that time, the present applicant gave a
stick blow on his head. When the first informant was taking her
husband to the house of the Sarpanch that time, father of the
applicant came there behind and gave a blow on the head of
Kailash by means of stone. That time, the mother of the applicant
and his sister Sunita also assaulted on the first informant and her
mother Dwarkabai (PW7) due to which they also suffered injuries.
On being entrusted with the investigation, Hirasingh
(PW9) visited the spot of occurrence and drew the panchanama of
the scene. The said is at Exh.-42. He also seized the stone stained
with blood from the spot in presence of pancha, which is at Exh.-
43. He arrested the applicant and his parents on 03.08.2002. The
stick was also seized at the instance of the present applicant from
his house, Exh.-44. The Investigating Officer seized the clothes of
the injured under the seizure panchanama Exh.12. All the seized
muddemal articles were sent to the Chemical Analyzer by the
Investigating Officer under invoice challan Exh.-48. After
completion of the other usual investigation, the Investigating
Officer filed challan in the court of learned Magistrate against the
4 revn15.11.odt
applicant. As the offence is exclusively triable by the Court of
Sessions, the learned Magistrate passed the order of committal.
4. The learned Assistant Sessions Judge framed the charge
against the applicant who was arrayed as accused no.3 and his
father Vasanta and his mother Vandana for the offence punishable
under Section 307 read with Section 34 of the IPC for making a
murderous assault on Kailash (PW6). All the accused persons
abjured their guilt and claimed for trial. In order to bring home
their guilt, the prosecution examined in all 10 witnesses and also
relied on various documents which were produced during the
course of the trial.
The learned Judge of the trial Court, after appreciating
the prosecution case, recorded a finding of guilt against all the
accused who were charged for the offence punishable under
Section 307 of the IPC. All of them were convicted and were
sentenced to suffer simple imprisonment for three years and a fine
of Rs.1,000/- each vide judgment dated 30.09.2004.
Being dissatisfied with the order of conviction and
sentence, an appeal was carried in the Court of Sessions. The said
appeal was registered as Criminal Appeal No. 16/2004 and was
5 revn15.11.odt
allotted to the learned Additional Sessions Judge, Pusad. After
hearing the parties to the appeal, the learned appellate Court
partly allowed the appeal vide judgment and order dated
31.01.2011. The learned appellate Court set aside the conviction
and order of sentence imposed upon the parents of the present
applicant. However, dismissed the appeal filed on behalf of the
present applicant and also modified the sentence from Simple
Imprisonment to Rigorous Imprisonment.
5. The question to be decided by this Court is whether the
prosecution has ably proved the guilt of the present applicant
beyond reasonable doubt. No doubt true, the scope of the revision
is limited one. The revisional Court is not expected to reappreciate
the evidence of the prosecution. However, at the same time, if any
miscarriage of justice has cropped up in the impugned order while
considering the evidence brought on record, the revisional Court is
entitled to see whether the evidence is correctly evaluated or not.
6. The injury, as per the prosecution case, is a fracture to
the skull of Kailash (PW6). Dr. Kailash Rathod (PW10) was
examine to prove the injuries suffered by the prosecution witness,
6 revn15.11.odt
injured Kailash. The evidence of Dr. Rathod (PW10) and the
injury certificate Exh.-60 issued by him is silent as to when the
injured regained consciousness. The prosecution has not brought
anything on record to show that whether the injured was referred
for X-ray examination. No X-ray plates are filed on record.
It will be useful to look into the cross-examination of
Dr. Rathod (PW10) in which it is stated as under:
"There are number of reasons for going the patient in
unconscious state. I cannot exactly say that whether due
to head injury, Kailash was unconscious, because head
injury can be due to some other metabolic conditions in
which there can be altered sensorium and patient can
fall on the ground and can get head injury or because of
head injury patient can become unconscious also."
From the aforesaid medical evidence, it is clear that the
head injury cannot alone be a reason for unconscious as stated by
the prosecution. Further, the Doctor has admitted as under:
"Injury pertaining to patient Kailas can be possible by
fall on the stone."
7. According to the Investigating Officer Hirasingh Rathod
(PW9), he has seized the stick at the behest of the present
applicant vide Exh.-44. The prosecution states that the stick was
7 revn15.11.odt
taken out by the present applicant and it was then seized. It is
pertinent to note that there was no memorandum statement under
Section 27 of the Indian Evidence Act. Further, no pancha witness
has supported the prosecution on the said seizure. In absence of
any memorandum statement, it cannot be said that the applicant
has discovered the stick. Thus, the evidence on which the
prosecution has heavily relied, is totally worthless and has to be
rejected.
8. The clothes of the injured are seized under seizure
memorandum Exh.-12. Perusal of the Exh.-12 would go to show
that the clothes are seized from one Mariba Kamble and the
person from whom the clothes of the injured are shown to be
seized is not examined by the prosecution as its witness.
9. Further, according to PSI Rathod (PW9), the seized
articles namely; stick, clothes of the injured, stone were sent to the
Chemical Analyzer under the invoice Exh.-48. Exh.-48 shows that
the only a stone, clothes of the injured and his blood samples were
sent to the Chemical Analyser. Therefore, it is crystal clear that
the stick, which according to the prosecution was a weapon, which
8 revn15.11.odt
was used by the present applicant was not sent to the Chemical
Analyzer under Exh.-48. The Chemical Analyzer's report which
are placed on record are Exh.-20 and 21. Exh.-21 is the blood
report in respect of injured Kailash. Exh.-20 shows that the
Chemical Analyzer has received only stone and the clothes of the
injured.
10. The evidence of Sambha Chavare (PW2) shows that he
is the neighbour of the first informant and also the accused as his
house is situated near their houses. His evidence shows that when
he was present in the house at that time he heard noise in front of
the house of Rukhmini (PW1).
11. Kailas Pawar (PW6) in his evidence has though denied
the suggestion that there used to be quarrel with the accused on
the business rivalry and that in a quarrel while running, he fell
down and got injured, the very basis of the prosecution case is that
due to the business rivalry, the present applicant challenged the
first informant and in that he made assault on Kailash. Thus,
denial of the suggestion by the injured Kailash is just for denial. In
absence of the weapon being sent to the Chemical Analyzer,
9 revn15.11.odt
though it was seized by the Investigating Officer, the suggestion
given to the injured that while running he fell down and he got
injured, assumes importance especially when Dr. Kailash Rathod
specifically admits that the injuries suffered by the injured Kailas
(PW6) can happen due to the fall on the stone.
12. In my view, both the courts below have not appreciated
this evidence correctly, resulting into miscarriage of justice.
In the result, the revision is allowed. The impugned
judgments and orders of sentence passed by the learned 1 st Ad hoc
Assistant Sessions Judge, Pusad dated 30.09.2004 in Sessions Trial
No.72/2002 and learned Additional Sessions Judge, Pusad in
Criminal Appeal No.16/2004 dated 31.01.2011 are quashed and
set aside. The applicant is acquitted of the offence punishable
under Section 307 of the IPC.
His bail bonds stand cancelled.
Fine amount, if any paid by the applicant, shall be
refunded to him.
JUDGE
kahale
10 revn15.11.odt
CERTIFICATE
I certify that this Judgment/Order uploaded is a true
and correct copy of original signed Judgment/Order.
Uploaded by: Y. A. Kahale. Uploaded On:27.09.2016
