Muralidhar S/O Ganpat Masne vs The State Of ...
2017 Latest Caselaw 9099 Bom

                                        1                                        apeal131.02




                 IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
                  

                           NAGPUR BENCH, NAGPUR.


 CRIMINAL APPEAL NO. 131 OF 2002



 Muralidhar s/o Ganpat Masne,
 Aged about 52 years, 
 Resident of Jawala Bk., Taluka - 
 Shegaon, District - Buldhana.                                   ....       APPELLANT


                     VERSUS


 The State of Maharashtra, 
 through Police Station, Shegaon,
 Taluka - Shegaon, District - 
 Buldhana.                                                       ....       RESPONDENT

 ______________________________________________________________

             Shri S.V. Sirpurkar, Advocate for the appellant, 
    Ms. Trupti Udeshi, Additional Public Prosecutor for the respondent.
  ______________________________________________________________

                              CORAM : ROHIT B. DEO, J.

DATED : 28 NOVEMBER, 2017.

th

ORAL JUDGMENT :

The appellant is aggrieved by the judgment and order

dated 28-1-2002 in Sessions Case 23/1995 passed by the learned 1 st

Ad hoc Additional Sessions Judge, Khamgaon, by and under which the

appellant (hereinafter referred to as the "accused") is convicted for

offence punishable under Section 325 of the Indian Penal Code and is

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sentenced to imprisonment till rising of the Court and to payment of

fine of Rs.5,000/-.

2. Heard Shri S.V. Sirpurkar, learned Advocate for the

accused and Ms. Trupti Udeshi, learned Additional Public Prosecutor

for the respondent.

3. The gist of the prosecution case is that the complainant

Ashok Masne, the brother of the injured Vasant, lodged report at Police

Station Shegaon that on 21-9-1994 at 9-30 a.m., the accused assaulted

the injured Vasant with an iron rod. The provocation, according to the

oral report, was that the injured Vasant intervened in an altercation

between one Purushottam Masne and the accused.

4. The Shegaon police registered offence under Section 307

of the Indian Penal Code, on the basis of the said report. The spot

panchanama was prepared, the clothes of the accused and injured

Vasant and the iron rod were seized. The medical certificate of the

injured, who was admitted and treated at Akola Hospital for nine days,

was obtained. The seized clothes and blood sample were sent to

Chemical Analyzer and the report obtained. Statement of witnesses

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were recorded and the culmination of investigation led to submission

of the charge-sheet before the learned Judicial Magistrate First Class,

Shegaon who committed the proceedings to the Sessions Court.

5. The learned Sessions Judge framed charge at Exhibit 13,

the accused pleaded not guilty and claimed to be tried. The defence is

of total denial.

6. The learned Sessions Judge was pleased to hold that the

prosecution has proved offence punishable under Section 325 of the

Indian Penal Code.

7. The prosecution examined as many as thirteen witnesses

including the complainant P.W.1 Ashok Masne, P.W.2 Arun Masne,

P.W.6 Vasant Masne, the injured, P.W.7 Purushottam Masne, P.W.9

Harish Masne, P.W. 10 Kishor Masne, who is son of the injured Vasant

and P.W.11 Shalikgram Lamak, the Gramsevak with whom

Purushottam was engaged in conversation.

8. The evidence of P.W.7 reveals that at 9-00 a.m. on

21-9-1994, he was talking with P.W.11 and was asking P.W.11 as to

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why murum was not laid in front of the resident of P.W.7. Accused

overheard the talk, got involved in an altercation with Purushottam

and slapped Purushottam twice. The injured Vasant intervened, the

accused ran towards his house, returned armed with an iron rod and

inflicted a blow on the forehead of the injured.

9. The evidence of P.W.6 Vasant, who as an injured witness,

is entitled to be treated on a higher pedestal vis-a-vis other witnesses,

has deposed consistently with the deposition of P.W.7 Purushottam.

During the cross-examination, it was suggested to P.W.6 that Vasant

was holding an arrow-stick used for plucking and that P.W.6 assaulted

the accused with the said arrow-stick and suffered injury while running

away. The suggestion is of course denied by the injured P.W.6.

10. The evidence of the injured witness is more than amply

corroborated by P.W.1 Ashok who has proved the oral report Exhibit 23

and the printed first information report Exhibit 24. P.W.2 Arun, who is

also a brother of the injured Vasant, corroborates the evidence of

injured Vasant and the other eye-witnesses on the aspect of the assault.

11. P.W.9 Harish did not support the prosecution and admits

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in the cross-examination that he is related to the accused. The

evidence of the eye-witnesses is further corroborated by P.W.10 Kishor,

but then, the learned Sessions Judge has rightly recorded a finding that

the presence of P.W.10 on the spot is doubtful. His evidence, would be

of no assistance to the prosecution since the evidence of P.W.1, P.W.2,

P.W.6, the injured Vasant, P.W.7 and the contents of the report do not

refer to the presence of P.W.10 on the spot.

12. The learned Counsel for the accused Shri S.V. Sirpurkar

vehemently submits that since every material witness is related to the

injured, their evidence must be tested with caution. The submission, as

a proposition of law, is unexceptionable. However, it is trite law that a

related witness is not necessarily an interested witness. Even

otherwise, even if the evidence of the eye-witnesses which is relied

upon by the learned Sessions Judge is tested on the anvil of caution,

the evidence is confidence inspiring.

13. The ocular evidence is more than corroborated by the

medical evidence and the discovery of the weapon at the instance of

the accused. On re-appreciating the evidence on record, I have not

found any infirmity with the view taken by the learned Sessions Judge.

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In my opinion, the prosecution has established the offence under

Section 325 of the Indian Penal Code beyond reasonable doubt.

14. The disturbing feature of the judgment is that having

convicted the accused for offence punishable under Section 325 of the

Indian Penal Code, the learned Sessions Judge has been more than

kind by sentencing the accused only to imprisonment till rising of the

Court. However, since the State has not sought enhancement of the

sentence and the incident occurred in the year 1994, I refrain from

issuing suo motu notice for enhancement of sentence.

15. The appeal is sans merit and is dismissed.

JUDGE adgokar