Bombay High Court

State Of Maha vs Vijay Bhimraj Wani & Ors on 11 May, 2017

Bench: S.S. Shinde

                                                                 cria436.04
                                        1


                                        
      IN  THE HIGH COURT OF JUDICATURE AT BOMBAY

                               BENCH AT AURANGABAD


                     CRIMINAL APPEAL NO.436 OF 2004


 The State of Maharashtra,
 Through the Taluka Police Station,
 Shrirampur
                                 ...APPELLANT 

        VERSUS             

 1) Vijay Bhimraj Wani,
    Age-28 years, Occu:Agri.,

 2) Changdeo Sadashiv Wani,
    Age-67 years, Occu:Agri.,

 3) Sanjay Bhimraj Wani,
    Age-31 years, Occu:Agri.,

 All R/o- Jalgaon, Tq-Rahata,
     Dist-Ahmednagar.     
                                 ...RESPONDENTS


                      ...
    Mr. V.D. Namde, A.P.P. for  Appellant.
    Mr. R.L. Kute Advocate h/f. Mr. V.R. Dhorde
    Advocate for Respondent.       
                      ...


               CORAM:   S.S. SHINDE, J.

DATE : 11TH MAY 2017

cria436.04

ORAL JUDGMENT :

1. Heard learned A.P.P. appearing for the

State and learned counsel appearing for

Respondents - accused.

2. This Appeal is arising out of the final

Judgment and Order passed by the Sessions Court,

Shrirampur in Sessions Case No.42 of 2002

delivered on 26th March, 2004.

3. The brief facts of the prosecution case

are as under:-

A) One Bhima Karbhari Pandit lodged the

First Information Report on 31st July, 2002, with

allegations that he is residing/ staying with his

family in Gut No.285 of village Jalgaon Chaudhari,

Tq-Rahata, Dist-Ahmednagar. Accused persons asked

him to lay a water channel through his land

cria436.04

Gut No.285. The informant PW-2 requested them to

lay a water channel during Summer session. However

the accused persons did not lay a water channel in

that season and therefore he sown the crop of

Kadwal.

B) On the day of incident i.e. on 31st July,

2002 at about 8.30 a.m. the informant came home

and found that all accused persons arrived at his

residence along with one Murlidhar Pandit. They

asked the informant for permitting them to lay the

water channel through his field. The informant

(PW-2) requested them that water channel may be

laid from any of the boundaries of the field

without damaging the crop of Kadwal. Accused No.2

- Changdeo Sadashiv Wani got angry and threatened

the informant that in any case the water channel

should be laid from the field where the crop of

Kadwal was standing. It is the further case of the

prosecution that accused No.1 - Vijay Bhimraj Wani

drove the tractor and ran over the same through

cria436.04

the crop of Kadwal. The informant rushed in front

of the tractor and requested the accused persons

not to drive it in the crop of Kadwal. However

accused No.1 did not listen the informant and on

the instigation of other co-accused, attempted to

run over the tractor on the person of the

informant. The informant tried to save himself,

however, front right wheel of the tractor was run

over by accused No.1 on left leg of the informant.

The informant raised alarm whereupon his wife

rushed to the spot. After arrival of wife of the

informant on the scene of occurrence, all the

accused slapped his wife. One Murlidhar Pandit

rescued the wife of the informant. Thereafter the

accused persons went away from the spot. Relatives

of the informant moved him to the hospital of

Dr. Murade, wherein he was treated and the doctor

found a fracture to his leg. From the hospital the

informant informed the incident to the police and

the same was treated as First Information Report.

cria436.04

4. Concerned Police Station caused the

investigation and after investigation, charge-

sheet came to be filed and the accused were tried

for the offence punishable under Section 307, 447,

323 read with 34 of the Indian Penal Code. After

full-fledged trial, the trial Court acquitted the

Respondents - accused. Hence this Appeal by the

State.

5. Learned A.P.P. appearing for the State

invites my attention to the deposition of the

informant (PW-2) and submits that the informant

himself is injured witness and he has

categorically stated the manner in which the

incident has taken place. Not only informant

(PW-2) was injured but his wife was also beaten

by the accused persons and therefore the trial

Court should have convicted the accused. He also

invites my attention to the evidence of other

witnesses who have witnessed the incident and

submits that the Appeal deserves to be allowed.

cria436.04

6. On the other hand learned counsel

appearing for the Respondents - accused, submits

that there was total non application of mind by

the prosecution. All the witnesses have stated

that the incident had taken place in Gut No.289/2

though the alleged incident had taken place, as

per the version of PW-2, in Gut No.285. It is

submitted that the medical officer who examined

the informant i.e. PW-2, has, in his cross-

examination, clearly ruled out the possibility of

the injuries sustained by the informant PW-2 due

to run over the tyre of tractor over his leg. It

is submitted that in absence of corroboration to

the version of the informant, the benefit of doubt

is rightly extended by the trial Court in favour

of the Respondents - accused. It is submitted that

evidence of other witnesses do not support the

prosecution case. On the contrary they have given

different version regarding the spot of incident

and the manner in which the alleged incident had

cria436.04

taken place. Therefore, he submits that the Appeal

may be dismissed thereby confirming the order of

acquittal passed by the trial Court.

7. I have given anxious consideration to the

submissions of the learned A.P.P. appearing for

the State and learned counsel appearing for the

Respondents- accused. With their able assistance,

I have perused the grounds taken in the Appeal,

the findings recorded by the trial Court and also

the entire evidence, so as to find out whether the

findings recorded by the trial Court are in

consonance with the evidence brought on record by

the prosecution or otherwise. Upon careful perusal

of the evidence of PW-2 i.e. informant, he has

stated that the injuries sustained to his leg are

due to act of accused No.1 of running over the

tyre of the tractor on his leg. In this respect to

lend the support to his statement, it would be apt

to refer the evidence of PW-1 Dr. Bhagwat

Gangadhar Murade. PW-1 Dr. Bhgwat Gangadhar Murade

cria436.04

in his evidence before the Court, stated about the

fracture to the leg of the informant and to that

effect he expressed his opinion and issued

certificate. However, during his cross-

examination, PW-1 Medical Officer has specifically

admitted that the injury mentioned in his report

is not possible if the tyre of the tractor runs

over a leg. The entire statement of PW-1 in his

cross-examination is reproduced herein below:-

" It is true that there is no mention of history of injury in exh.21. It is true that there is no mention about the cause of injury in my report. It is true that injury mentioned in my report is not possible if the tyre of a tractor runs over a leg. It is correct that if a person travelling on a motor cycle and suddenly fell such injury is possible. It is not true that the bone was not broken as mentioned in my report. I cannot tell whether the police came to enquire about the patient in my hospital. The injury is

cria436.04

possible if the person is hit by any vehicle."

8. Apart from the fact that version of PW-2

does not get support from the medical evidence,

the evidence of other witnesses suffers from

contradictions and makes it unworthy to accept the

same. It is rightly concluded by the trial Court

that though the alleged incident has taken place

in Gut No.285 as stated by the informant (PW-2),

the entire investigation and also the statement of

the witnesses shows that they have referred to Gut

No.289/2 as the spot of incident, instead of Gut

No.285. Upon re-appreciation of the entire

evidence, I am of the opinion that the findings