The State Of Maharashtra vs Shri. Tukaram Siddhappa Kamble
2017 Latest Caselaw 2699 Bom

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      IN THE HIGH COURT OF JUDICATURE AT BOMBAY

                   CRIMINAL APPEL ATE JURISDICTION

                        CRIMINAL APPEAL NO.546 OF 2003


      The State of Maharashtra                           ..Appellant.

                      V/s.

      Tukaram Siddhappa Kamble,
      Age: 39 years, Occ: Service,
      R/o. Rendal, Tal. Hatkanangale,
      District Kolhapur.                                 ..Respondent.


      Mrs.Sharmila Kaushik, APP for the Appellant.

      None for the Respondent.


                                      CORAM : ANOOP V. MOHTA, J.

DATE : 1 JUNE, 2017

ORAL JUDGMENT

The matter is called out for final hearing as the

matter is specifically fixed in summer vacation.

2. This is a State appeal under section 378(1)

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of the Code of Criminal Procedure against the judgment and

order of acquittal passed by the Judicial Magistrate First Class,

Ichalkaranji in Sessions Case No.262 /1999 dated 25 November,

2002 whereby the accused is acquitted of the crime punishable

under section 324 of the Indian Penal Code.

3. As per the prosecution, on 17 April 1999 the

complainant was sleeping in his newly constructed house in

front Samaj Mandir. At that time, the door was open. At about

2 to 2.15 a.m. a heavy stone thrown at his house. He shouted

loudly. His friend Sagar Kamble woke up - saw blood injury

on the left ear of the complainant. A complaint was filed.

Charges came to be framed against the accused. He pleaded

not guilty, claimed to be tried, & the trial proceeded

accordingly. The prosecution examined 5 witnesses in support

of its case.

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4. Heard the learned APP for the State who read the

record and reasons given by the learned judge. In my view also,

the prosecution failed to prove that on 18 April, 1999 at about

2.00 a.m., accused gave blow to the complainant by the stone

and thereby committed the offence. There is no direct evidence

or material placed to justify or even supported by any of the

witnesses that the accused threw the stone when the

complainant was sleeping in the house along with family

members. The stone as per the prosecution case was about 35

kgs., found near the stated place. No family members came

forward. No witness appeared to make a positive case that the

accused had thrown the stone. The suspicion appears to be the

foundation of the prosecution case. There was no light available

during the time. The complainant and /or other witnesses

unable to see the face of the accused. This is also in the

background that the complainant came out after two minutes and

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saw one person running. The supporting witness also saw one

person running. That itself, as rightly recorded by the learned

Judge, cannot be the reason to convict the accused for the stated

offence. Therefore, taking overall view of the matter and after

considering the evidence, I am of the view that prosecution has

failed to prove that accused caused the stated injury to the

complainant. The order of acquittal needs no interference

keeping in the mind the settled position of law about the scope

and power of the Appellate Court while dealing with the State

appeal against the acquittal.

5. The State appeal is dismissed.

(ANOOP V. MOHTA, J.)