Sau. Dwarkabai W/O Vithoba Nagre vs The State Of Mah. Thr. P.S.O., ...
2017 Latest Caselaw 8238 Bom

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               IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                         NAGPUR BENCH, NAGPUR.

              CRIMINAL REVISION APPLICATION NO.09 OF 2010


Dwarkabai w/o Vithoba Nagre, 
aged about 55 yrs, Occ. Agriculturist, 
R/o at village Khalegaon, 
Tah. Lonar, Dist. Buldhana.                                    ... Applicant. 

-vs-

1.  The State of Maharashtra,
     Through Police Station Officer, 
     Mehkar Police Station, Tah. Mehkar, 
     Dist. Buldhana 

2.  Ananda s/o Narayan Nagre,
     aged about 48 years, 
     Occupation Agriculturist, 
     R/o at village Khalegaon, 
     Tah. Lonar, Dist. Buldhana                                ... Non-applicants. 


Shri N. B. Kalwaghe, Advocate for applicant. 
Ms G. Tiwari, Additional Public Prosecutor for non-applicant No.1/State. 
Shri K. P. Sadawarte, Advocate for non-applicant No.2.  


                                 CORAM  :  A. S. CHANDURKAR, J. 

DATE : October 30, 2017

Oral Judgment :

The applicant is the informant who has filed the present revision

application under Section 401 of the Code of Criminal Procedure, 1973

challenging the judgment of the appellate Court in Criminal Appeal

No.25/2006 whereby the said appeal preferred by non-applicant No.2 herein

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has been allowed and his conviction as recorded by the trial Court has been

set aside.

2. Case of the prosecution is that when the applicant was standing in

her agricultural field at about 11.30 am, a pair of bullocks owned by non-

applicant No.2 entered her field and destroyed her chilli crop. The applicant

attempted to drive the bullocks out of her field but she was restrained by

non-applicant No.2 who then assaulted her with a stick on her thigh, head

and ribs. She sufferred injuries on her head. Her nephew and sister-in-law

came to rescue her but they were also beaten by non-applicant No.2. The

applicant therefore lodged report after which she was given medical

treatment. On the basis of this report a crime was registered. The non-

applicant No.2 was charge-sheeted for the offence punishable under Section

323 of the Indian Penal Code along with Sections 163 and 164 of the

Maharashtra Village Panchayats Act, 1958. The non-applicant No.2 did not

plead guilty and was thus tried. At the conclusion of trial, non-applicant

No.2 was convicted for the aforesaid offence. He was sentenced to suffer

rigorous imprisonment for three months and to pay fine of Rs.300/-. The

non-applicant No.2 being aggrieved challenged this judgment of conviction

by filing an appeal. The appellate Court allowed said appeal and set aside

the order of conviction. Being aggrieved the informant/victim has filed the

present revision application.

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3. At the outset Shri N. B. Kalwaghe, learned counsel for the

applicant on instructions submitted that the present revision application was

being pursued in so far as it acquitted the non-applicant for the offence

punishable under Section 323 of the Penal Code. He fairly submitted that

acquittal of non-applicant No.2 for offence punishable under Sections 163

and 164 of the Maharashtra Village Panchayats Act, 1958 appears to be

reasonable. It was submitted that the trial Court after proper appreciation

of the entire evidence on record had rightly found that the non-applicant

No.2 was guilty of having committed an offence under Section 323 of the

Penal Code. The appellate Court by overlooking the material evidence

proceeded to acquit the non-applicant No.2. It was submitted that though

the Investigating Officer had been examined as PW-6, the appellate Court in

paragraphs 15 and 16 observed that the Investigating Officer had not been

examined. It was then submitted that absence of any medical report or

failure to examine the Medical Officer could not be a ground for acquitting

the non-applicant No.2. The injuries sustained by the applicant stood

admitted in view of the suggestions given on behalf of the non-applicant

No.2 in the deposition of prosecution witnesses. It was then submitted that

the offence alleged being under Section 323 of the Penal Code, it was

sufficient that hurt was caused to the applicant. It was only when there was

an allegation as to grievous hurt being caused that medical evidence in that

regard was necessary. He further submitted that material evidence with

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regard to the relations between the accused and the victim had not been

properly appreciated resulting in passing of the order of acquittal. The so

called omissions in the deposition of the prosecution witnesses were not

proved by the Investigating Officer. Relying upon the judgment of

Honourable Supreme Court in Ram Briksh Singh and ors vs. Ambika

Yadav and anr. (2004) 7 Supreme Court Cases 665, it was submitted that

if the judgment of acquittal is rendered by overlooking material evidence, a

case is made out for remand of the case for reconsideration. According to

learned counsel the appeal deserves to be remanded to the appellate Court

for being reconsidered.

4. Shri K. P. Sadawarte, learned counsel for non-applicant No.2

supported the impugned judgment. According to him the appellate Court

after considering the entire evidence on record rightly acquitted the non-

applicant No.2. The view taken by the appellate Court was a possible view of

the matter and the appeal should not be remanded merely to grant another

opportunity to the prosecution to prove its case. He referred to the evidence

on record to submit that the case of the victim has not been corroborated by

other witnesses. Most of the witnesses were related to the applicant. The

suggestions given in the cross-examination as regards injuries sufferred by

the victim were for bringing on record contradictions. The Medical Officer

was required to be examined but the same was not done. Similarly, medical

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report indicating injuries sufferred was also not placed on record. It was

therefore submitted that there was no reason whatsoever to interfere with

the impugned judgment. In support of this submissions, the learned counsel

placed reliance on Panalal Damodar Rathi v. State of Maharashtra AIR

1979 SC 1191, Tukaram Rama Patil vs. Pandharinath Narayan Patil and

ors. 2007 ALL MR (Cri) 1911 and Rajkumar s/o Dagadu Jadhav vs. State

of Maharashtra 2012(4) Mh.L.J. (Cri) 652.

Ms G. Tiwari, learned Additional Public Prosecutor for non-

applicant No.1/State also supported the impugned judgment. In reply it was

submitted on behalf of the applicant that the prosecution having supported

the impugned judgment, there was substance in the observations of the trial

Court that the prosecution had favoured the accused.

5. I have heard the learned counsel for the parties at length and with

their assistance, I have perused the material placed on record. The present

revision application having been filed by the victim who is aggrieved by the

judgment of acquittal, it is necessary to refer to the parameters as laid down

by the Honourable Supreme Court in Ram Briksh Singh and ors. (supra) as

to the broad parameters when an order of acquittal could be interfered with

and proceedings deserve to be remanded. It was held in the aforesaid case

that if the Court has overlooked the evidence with regard to material

circumstances then an order of remand for retrial to the trial Court could be

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made. As noted above in the present case the submission is that the

proceedings deserve to be remanded to the appellate Court for

reconsideration of the appeal. The trial Court after considering the evidence

on record accepted the evidence led by the prosecution for holding that it

had proved its case. It relied upon the depositions of PW-1 and PW-4. It

further held that there was no previous enmity between the accused and the

victim. Failure to examine the Medical Officer was not held very material on

the ground that injuries had been sustained by the victim and the witnesses.

The appellate Court found that injury certificates of PW-1, PW-2

and PW-5 were not placed on record. Similarly, the Medical Officer as well

as the Investigating Officer had not been examined. The blood stained

clothes of the victim as well as the stick used in the assault were also not

brought on record. On the basis of contradictions in the evidence, it was

held that the case was not proved beyond reasonable doubt.

6. It is not necessary to re-examine the entire evidence in exercise of

revisional jurisdiction under Section 397 read with section 401 of the Code.

The question is whether the evidence on record that is material in nature has

been overlooked while acquitting the non-applicant No.2. As per the report

lodged by the applicant, she was assaulted by a stick by the non-applicant

No.2. As a result she sustained bleeding injuries. The blows were given on

her thigh, head and ribs. Though it is true that the offence alleged is under

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Section 323 of the Penal Code, the weapon of assault has not been seized.

According to the applicant she first went to the police station and thereafter

to the hospital where she was treated. According to PW-2, after the applicant

was hit, she was lifted and brought to her house. The victim and witnesses

then went to the Government Hospital and thereafter to the Police Station.

PW-6 who is the Investigating Officer does not depose about referring the

victim and injured witnesses for medical treatment. Thus, the evidence

regarding undertaking medical treatment is not consistent. Similarly, in so

far as PW-5 Santosh is concerned, it is stated by PW-2 that the non-applicant

No.2 hit Santosh on the backside of his neck. However, said PW-5 Santosh

in his cross-examination admitted that he had received a forceful blow of the

stick on his neck from front side. He was also examined by the Medical

Officer. Hence, there is no corroboration on this count.

7. In the light of aforesaid nature of evidence, absence of medial

report as well as failure to examine the Medical Officer is of material

relevance. The stick used in the offence has not been seized. The

suggestions given in the cross-examination are not of such nature that would

substantiate the case of the prosecution. On the contrary various material

contradictions have been brought on record. Though it is true that the

Investigating Officer was examined as PW-6, merely because it is stated

otherwise in the impugned judgment, that by itself would not vitiate the said

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judgment. I find that the appellate Court has taken into consideration the

entire evidence on record and it cannot be said that it has overlooked any

material evidence on the basis of which revisional jurisdiction could be

exercised. Moreover, certain answers given in the examination of non-

applicant No.2 in his statement under Section 313 of the Criminal Procedure

Code also cannot be the reason for holding that the appellate Court has

overlooked the material evidence.

8. Thus considering the entire material on record and in the light of

law laid down in the decisions relied upon, I do not find any case having

been made out for remanding the proceedings for fresh consideration to the

appellate Court. The appreciation of evidence while acquitting the non-

applicant No.2 cannot be said to be perverse.

In view of aforesaid, I do not find any merit in the revision

application. It is accordingly dismissed.

JUDGE

Asmita