Bombay High Court
The State Of Mah.Thr.Pso Nagpur vs Naresh Mahadeo Khodve on 23 August, 2017
Bench: R. B. Deo
apeal45.04.J.odt 1
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR
CRIMINAL APPEAL NO.45 OF 2004
State of Maharashtra through
P.S.O. of Police Station, M.I.D.C.,
District Nagpur. ....... APPELLANT
...V E R S U S...
Naresh s/o Mahadeo Khodve,
Aged Major, Wirless Operator,
S.R.P.F. Group No.4, Nagpur. ....... RESPONDENT
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Shri H.R. Dhumale, APP for Appellant/State.
Shri H.G. Katekar, Advocate for Respondent.
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CORAM: ROHIT B. DEO, J.
DATE: rd
23 AUGUST, 2017.
ORAL JUDGMENT
1] The State is in appeal challenging the judgment of
acquittal dated 20.10.2003 delivered by the Judicial Magistrate,
First Class, 10th Court, Nagpur in Regular Criminal Case 180/1988
by and under which the respondent/accused is acquitted of
offences punishable under section 332 and 353 of the Indian
Penal Code.
2] The gist of the prosecution case is that on 04.09.1987
approximately at 10:00 a.m. the accused physically assaulted the
complainant Ramchandra Deval, then attached to the Wireless
Department, S.R.P.F. Group-IV, Nagpur as Inspector. The genesis
of the assault is stated to be a reprimand given by the said
complainant to the accused since the accused allegedly was not
wearing his uniform. The accused allegedly assaulted the
complainant by inflicting fist blows on the face and nose of the
complainant.
3] Heard Shri Dhumale, the learned Additional Public
Prosecutor for the State.
4] Shri Dhumale, would urge that the judgment
impugned is unsustainable and that the testimony of the
complainant who is examined as P.W.3 is amply corroborated by
the medical evidence and in particular the testimony of Dr. Anjana
Thakare who is examined as P.W.5. He would invite my attention
to the fact that the accused took a defence of alibi which the Court
found to be false. He would urge that although the fact that the
defence was found to be false would not relieve the prosecution of
the burden of proving the offence beyond reasonable doubt, that
would be a circumstance which must be taken into account while
appreciating the evidence.
5] The learned counsel for the respondent/accused
would urge that the view taken by the learned Magistrate is a
possible view and the view is certainly not perverse. He would
urge that other than that of the complainant, there is absolutely
no ocular evidence. None of the witnesses have witnessed the
assault. The testimony of the complainant is not corroborated, and
indeed is falsified by the medical evidence. The learned counsel
would invite my attention to the injury certificate and the
testimony of the medical practitioner, according to which the
injury occurred between 24 hrs. to 48 hrs. prior to the medical
examination. The learned counsel would urge that the observation
of the medical practitioner that the bluish colour would appear
only after 24 to 48 hrs. would substantiate that according to the
medical evidence the injury occurred at least 24 to 48 hrs. prior to
the medical examination. According to the medical practitioner,
she examined the complainant at 6:00 p.m. on 04.09.1987 while
the complainant states that he was examined by the medical
practitioner at 11:00 a.m. This inter se inconsistency has not been
explained.
6] The learned Magistrate has on an overall appreciation
of the evidence on record held that the offence is not proved. I
agree with the learned counsel for the respondent/accused that
the judgment of acquittal is not perverse. A plausible or possible
view is taken by the learned Magistrate. Assuming that there is a
second view, since the appeal assails is an acquittal order, I would
refrain from interfering in the judgment impugned. The appeal is
rejected.
JUDGE
NSN
