Kirtilal S/O Yeshwant Garfade vs State Of ...
2017 Latest Caselaw 1749 Bom

apeal.188.02.jud.doc                        1


  IN THE HIGH COURT OF JUDICATURE AT BOMBAY
            NAGPUR BENCH, NAGPUR


                    CRIMINAL APPEAL NO.188 OF 2002


Kirtilal s/o Yashwant Garfade,
Aged about 39 years,
Occupation : Agriculturist,
R/o Jogisakhara, Tahsil Armori,
District Gadchiroli.                                                .... Appellant

       -- Versus --

State of Maharashtra,
through Police Station, Armori,
District Gadchiroli.                                            .... Respondent


Shri V.N. Morande, Advocate for the Appellant.
Shri R.S. Nayak, Additional Public Prosecutor for the Respondent/State.


                CORAM           : KUM. INDIRA JAIN, J.

                DATE            : APRIL 17, 2017.

ORAL JUDGMENT :-

This appeal takes an exception to the judgment and

order dated 01/04/2002 passed by the learned Ad hoc Additional

Sessions Judge, Gadchiroli in Sessions Case No.7/2001 convicting

the appellant-accused of the offences punishable under Sections

333 and 353 of the Indian Penal Code and sentencing him as

under :

Sections Sentence                       Fine

333 IPC          R.I. for 3 years    + Fine of Rs.1,000/-, in default
                                       R.I. for 6 months.

353 IPC          R.I. for 6 months   + Fine of Rs.500/-, in default
                                       R.I. for 3 months.

Both the sentences were directed to run concurrently.

02] Prosecution case, which can be revealed from the

charge-sheet and connecting papers thereto, may be stated, in

brief, as under :

i. Complainant Dr. Haridas Nanduji Nandeshwar was

attached to Allopathic Hospital of Zilla Parishad,

Jogisakhara since 1996 as Assistant Medical Officer. A

peon and a nurse were also working in the said

hospital. Accused was resident of village Jogisakhara.

He was son of ex-sarpanch of the village.

ii. Incident occurred on 05/02/2000 at around 04:15 p.m.

Accused went to the hospital. Complainant was on

duty. Accused asked complainant that he received an

injury due to bullock bite on his finger and asked him

to apply bandage. Complainant put medicated cotton

swab on injury on the finger of accused and asked him

to hold the same so that he can bring bandage and

medicines. It is the case of the prosecution that on

that, accused arrogantly told the complainant that it is

not his job to hold cotton swab and saying so

delivered two fist blows on the chest of complainant.

Complainant fell down. He then got up. Accused

pulled and pushed the complainant. He caught left

hand of complainant and pressed it forcibly in the

wooden door. Thereafter, accused delivered blows on

the chest of complainant and abused him in filthy

language.

iii. Complainant received multiple injuries including a

fracture to the left hand. Thereafter, complainant

went to the house of PW-3 Jagannath Bhagadkar, who

was serving in the same hospital and narrated the

incident to him. Then, he had been to Armori Police

Station and lodged report. Crime No.6/2000 was

registered against the accused. Investigation was

taken over by PW-6 ASI Purushottam Thakare. He

went to the spot of incident and recorded spot

panchnama. Statement of witnesses were recorded.

iv. Meanwhile, complainant was referred to Rural Hospital

Armori. PW-7 Dr. Riyaz Ahemad was the Medical

Officer on duty. He examined the complainant and

found injuries on left wrist, shoulder and tenderness

over fingers of left hand and left lumber region.

Patient was referred to General Hospital, Gadchiroli for

X-Ray. Technician Shri Madami took X-Ray of

complainant. From the X-Ray, fracture of scaphoid left

bone was noticed. Medical Certificate was

accordingly issued by the Doctor. Investigating

Officer collected the Medical Certificate and on

completion of investigation, submitted charge-sheet

to the Court of Judicial Magistrate First Class, Armori,

who in turn committed the case for trial to the Court

of Sessions.

03] On committal, Trial Court framed charge against the

accused vide Exh.2. He pleaded not guilty and claimed to be

tried. His defence was of total denial and false implication.

Accused submitted that he had not gone to the hospital and he

did not receive any injury as stated by the complainant. He

submitted that accused used to remain absent from duty. He

was coming late to the hospital and, therefore, complaint was

made to higher authority. Complainant came to know about the

same and to take vengeance, lodged false complaint against the

accused.

04] Prosecution examined in all seven witnesses in

support of its case. Considering the evidence of prosecution

witnesses and submissions made on behalf of the parties, Trial

Court came to the conclusion that offences under Section 333

and 353 of the Indian Penal Code have been proved and in

consequence thereof convicted the accused as stated in

paragraph 1 above. Being aggrieved by the judgment and order

of conviction and sentence, appellant-accused has preferred this

appeal.

05] Heard Shri V.N. Morande, learned Counsel for the

appellant and Shri R.S. Nayak, learned A.P.P. for the State. With

the assistance of the learned Counsel for the parties, this Court

has gone through the evidence of prosecution witnesses. On

meticulous evaluation of the evidence of star witnesses i.e.

complainant and Medical Officer, who examined the

complainant, and taking into consideration the submissions

made on behalf of the parties, reasonings recorded by the Trial

Court, this Court, for the below mentioned reasons, is of the view

that prosecution could not succeed in proving the guilt of

accused beyond reasonable doubt.

06] PW-4 Haridas Nandeshwar is the complainant. He

stated that on the day of incident at about 04:00 p.m., he was in

O.P.D. According to complainant, accused Kirtilal came to O.P.D.

at 04:15 p.m. He told the doctor that he received injury to his

finger due to bullock bite and asked him to apply bandage. It is

the say of complainant that he registered the name of accused in

O.P.D. register. Copy of O.P.D. register is not filed on record.

Accused has denied that he had been to the hospital at any time.

In view of specific denial, it was incumbent on prosecution to

produce copy of O.P.D. register, which would have thrown light

on visit of accused to the hospital and injury on his finger as

stated by the complainant.

07] On occurrence of incident, PW-4 Dr. Nandeshwar

stated that he put medicated cotton swab on finger of accused

and asked him to hold the same so that he can bring medicines.

On that, accused told PW-4 that it is not his job to hold the

cotton swab and gave fist blows twice on his chest. He fell down

and then got up. Accused abused him. When he asked the

accused not to abuse, he raised his hand to beat him. Again he

gave fist blows and complainant fell down. Thereafter, accused

caught hold hand of complainant and pushed his hand forcibly in

the door, due to which he received fracture over wrist and other

injuries. It is also stated that accused threw articles which were

kept on table and uttering filthy abuses left the O.P.D.

08] So far as occurrence is concerned, except PW-4

complainant, prosecution did not examine any other witness. It

appears from the evidence of complainant that at the relevant

time, he was alone in the O.P.D. It is significant to note that

incident took place at 04:15 p.m. It was a Government hospital.

It is the case of prosecution that at the relevant time, a peon and

a nurse were also attached to the said hospital. Investigating

Officer PW-6 ASI Thakare no where states in his evidence that

during investigation, he tried to record the statement of

witnesses and it was revealed that complainant was the only

person, who was present at the time of occurrence of incident.

F.I.R. [Exh.11] indicates that Shri Bhagadkar, Health Assistant

and Smt. Khanke (Butle), a nurse both were appointed in the

hospital, in which complainant was the Medical Officer. It is

stated in F.I.R. that at the relevant time, both were not available

in the hospital. There is no whisper in the evidence of

complainant that except accused, no other patients were present

in the hospital. The reasons for quarrel assigned by the

complainant appears to be improbable and unreasonable that a

person having received injury on finger was asked to just hold a

cotton swab and instead of holding the cotton swab, he started

assaulting the treating doctor. Accused has raised a defence

that complainant used to come late in the hospital. Most of the

times, he was remaining absent from duty and so his father and

several other person made a complaint against him. It is not

denied that father of accused was ex-sarpanch. In the light of

this defence raised by the accused, it was necessary for the

prosecution to bring corroboration to the testimony of the

complainant.

09] PW-3 Jagannath Bhagadkar was serving in the same

P.H.C. He is the person to whom complainant has made

immediate disclosure of the incident. PW-3 does not support the

prosecution. He was declared hostile and nothing could be

elicited in his cross-examination by the learned A.P.P. to show

that he had a reason to side the accused, except a fact that he

was knowing the accused.

10] Learned A.P.P. has placed reliance on the testimony of

PW-5 Dr. Malik and PW-7 Dr. Riyaz and submitted that injuries on

the person of the complainant have been proved and medical

evidence corroborates the testimony of complainant. So far as

PW-5 Dr. Malik is concerned, it is interesting to note that he was

not the Medical Officer In-charge of Civil Hospital, Gadchiroli,

where X-Ray of complainant was taken. His evidence clearly

indicates that he was not at all concerned with the X-Ray of

complainant, as the X-Ray was taken by technician Shri Madami

and Dr. Indurkar, who was the Medical Officer at the relevant

time. Neither technician Madami nor Medical Officer Indurkar

came to be examined by the prosecution.

11] The moot question would be, whether PW-5 Dr. Malik

can be said to be a competent witness on X-Ray of the

complainant. It appears from the admissions elicited in the

cross-examination of PW-5 Dr. Malik that simply on the basis of a

chit pasted on X-Ray plate, he brought the X-Ray and produced

the same before the Court. It is not known whether this X-Ray

was collected during the course of investigation by the

Investigating Officer and it was a part of charge-sheet or not.

12] In any case, evidence of PW-5 Dr. Malik would not be

helpful to the prosecution, as he was not the person to take X-

Ray or the Medical Officer under whose supervision X-Ray was

taken. Even copy of M.L.C. register was not produced by PW-5

Dr. Malik, which would have thrown light on the fact that

complainant had been to the hospital for X-Ray and his X-Ray

was taken. In view of the drawback and for non-examination of

the competent witness on X-Ray of the complainant, it cannot be

said that prosecution has legally proved X-Ray plate and legally

established the fact that complainant sustained fracture.

13] PW-7 Dr. Riyaz was the Medical Officer at Rural

Hospital, Armori. He stated that on 05/02/2000, injured Haridas

Nandeshwar was brought to the hospital by police. He examined

the injured and noticed the following injuries.

(i) Contusion on left wrist - size 3 x 3 cm.

(ii) Mild contusion on left shoulder.

(iii) Tenderness over four fingers of left hand.

(iv) Tenderness over left lumber region.

14] According to the Medical Officer, Injury Nos. (iii) and

(iv) were simple injuries and could cause by hard and blunt

object. Regarding Injury Nos.(i) and (ii), it is stated by the

Medical Officer that only after X-Ray, it could be commented

whether there was a fracture to left wrist joint or left shoulder

joint. So far as X-Ray is concerned, this Court has already

observed that evidence is deficient and for non-examination of

the competent witness, reliance cannot be placed on X-Ray

plate. Injury Nos.(iii) and (iv) are not the injuries in real sense

and even according to the Doctor, tenderness over four fingers

of left hand and over left lumber region was noticed. It is stated

by the Medical Officer that no obvious bony deformity was found

on the finger and no rigidity was noticed on the lumber region.

Medical Certificate [Exh.28] appears to be in two parts. The first

part relates to the injuries stated by the Medical Officer and the

second part is regarding X-Ray Report by the Medical Officer of

Civil Hospital, Gadchiroli. So far as second part is concerned,

concerned Medical Officer has not been examined. So far as

injuries as stated by PW-7 are concerned, he could not opined

regarding Injury Nos.(i) & (ii) as, according to him, same could be

commented only after receipt of X-Ray report. Prosecution has

not assigned any reason for non-examining the Medical Officer

on X-Ray report. As the Medical Officer is not examined, X-Ray

report is required to be kept out of consideration and if X-Ray

report is kept out of consideration, offence under Section 333 of

the Indian Penal Code would fail.

15] Regarding offence under Section 353 of the Indian

Penal Code, prosecution wants to rely upon the sole testimony of

the complainant. For non-production of copy of extract of O.P.D.

register, absence of evidence to show that accused had been to

the hospital with an injury to his finger due to bullock bite and

for want of corroboration to the testimony of complainant,

against whom serious allegations of absence from duty and

coming late to the office were levelled, this Court is of the

opinion that it is risky to rely upon the sole testimony of

complainant, particularly, in the light of specific defence raised

by the accused.

16] In the above premise, the judgment and order of

conviction recorded by the trial Court is unsustainable and

interference is warranted in the present appeal Hence, the

following order.

ORDER

i. Criminal Appeal No.188/2002 is allowed.

ii. Impugned judgment and order of conviction and

sentence of the appellant-accused passed by the

learned Ad hoc Additional Sessions Judge,

Gadchiroli, dated 01/04/2002 in Sessions Trial

No.7/2001 is quashed and set aside.

iii. Accused is acquitted of the offences punishable

under Sections 333 and 353 of the Indian Penal

Code.

iv. His bail bonds stand cancelled.

v. Fine, if paid, shall be refunded to the appellant-

accused.

vi. No costs.

(Kum. Indira Jain, J.) *sdw