State Of Maharashtra vs Kisan Vital Bhusar And Another
2017 Latest Caselaw 2592 Bom

                                                               apeal122.03


                                      1




          IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                    NAGPUR BENCH : NAGPUR
                       Criminal Appeal No. 122 of 2003

 The State of Maharashtra,
 through Police Station,
 Pusad [City].                                .....           Appellant


                                   Versus


 1.     Kisan Vital Bhusar,
        aged about 30 years,
        resident of Bori Mukhare,
        at present Kadad,
        Distt. Pusad.

 2.     Punjaji Vithal Bhusar,
        aged about 35 years,
        resident of Kakad
        Dati, Pusad.                          .....        Respondents.

                                    *****
 Mr. Bissa, Addl. Public Prosecutor for the appellant-State.
 Mr. Dharaskar, Adv., for respondents.
                                    *****




::: Uploaded on - 22/05/2017                 ::: Downloaded on - 23/05/2017 00:59:30 :::
                                                                   apeal122.03


                                        2




                                 CORAM :        A.S. CHANDURKAR, J.

                                 Date       :   22nd May, 2017

 ORAL JUDGMENT:

01. The present appeal filed under Section 378 of the Criminal

Procedure Code, 1973, takes exception to the judgment of acquittal

passed by the learned Second Ad Hoc Additional Sessions Judge,

Pusad, in Sessions Trial No. 95 of 1998. In the said trial, the

respondents were charged for the offence punishable under Section

307 read with Section 34 of the Indian Penal Code.

02. The case of the prosecution is that Accused Nos. 1 and 2 as

well as the complainant are step-brothers. On 30 th June, 1998, the

complainant had gone to the shop of Deorao [PW 2] for chewing Pan.

The Accused No.1 had come there and had assaulted him with a sickle

on his head. The Accused No.2 had in the process caught hold of the

complainant. The complainant sustained injuries, on the basis of which

he filed a report. The crime was registered and investigated and on its

completion, charge was framed against the accused. At the conclusion

of the trial, the learned Sessions Judge held that the guilt of the

accused was not proved beyond reasonable doubt and, hence,

apeal122.03

acquitted them.

03. Shri Bissa, learned Addl. Public Prosecutor, submitted that

the evidence of the complainant - PW 1 who was also an injured

witness ought to have been relied upon. He submitted that the

learned Sessions Judge was not justified in disblieving the complainant

merely on the ground that there was some previous enmity between

the complainant and the accused. He submitted that on consideration

of the entire evidence on record, it was clear that it was the accused

nos. 1 and 2 who had assaulted the complainant and, hence, had

committed offence punishable under Section 307 read with Section 34

of the Penal Code.

04. Shri Dharaskar, learned counsel for the respondents,

supported the judgment of acquittal. He submitted that except the

complainant, there was no other eye-witness. PW 2, who was the Pan

shop owner, had turned hostile and the trial Court, therefore, was

justified in disbelieving the case of the prosecution. He further

submitted that the seizure of the incriminating weapon and the

manner in which it was sent for chemical analysis was also doubtful.

05. With the assistance of the learned counsel for the parties, I

apeal122.03

have perused the records of the case. After giving due consideration to

the respective submissions, I find that the trial Court was justified in

disbelieving the case of the prosecution.

06. According to the complainant, he had been to the Pan shop

of PW 2, at which point of time, he was assaulted from the back by

accused no.1. PW 2, though examined, has not supported the case of

the prosecution. Other witnesses examined have also turned hostile.

The complainant is related to the accused - they being the step-

brothers. There are civil proceedings pending between the parties

with regard to partition of family property. Similarly, a criminal case is

also pending between the parties. Strained relations between them

have been brought on record. In such situation, it is necessary to

examine whether there is other corroborative evidence to support the

case of the prosecution.

07. The seizure of the weapon is dated 30 th June, 1998 and

seizure of the clothes of accused no.1 is on 1 st July, 1998. These

articles were, however, sent for chemical analysis only on 17 th

September, 1998. The prosecution has not brought on record the

aspect with regard to placement of these articles during said period of

more than two months.

apeal122.03

08. In the light of aforesaid material on record, I find that the

learned Sessions Judge was justified in granting benefit of doubt to the

accused. It is well settled that in absence of any perversity in the

findings recorded by the learned Sessions Judge, interference with an

order of acquittal should not be easily made.

09. In view of aforesaid discussion, the appeal fails. The same is

accordingly dismissed.

Judge

-0-0-0-0-

|hedau|