State Of Mah.Thr. Pso Buldhana vs Ashok Pralhad Kharpas And 3 Others
2017 Latest Caselaw 6702 Bom

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                 IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
                  

                           NAGPUR BENCH, NAGPUR.


 CRIMINAL APPEAL NO. 226 OF 2004


 State of Maharashtra, 
 through Police Station Officer, 
 Amdapur, Tq. Chikhali, District Buldhana.                   ....       APPELLANT


                     VERSUS


 1) Ashok Pralhad Karpas,
     Age 30 years, 

 2) Nandkishor Fakira Kharpas, 
     Age 37 years, Occ.- Agriculture, 

 3) Dilip Pralhad Kharpas,
     Age 36 years, 

 4) Dattatraya Tulshiram Pawar,
     Age 38 years, 

     All R/o Dahigaon, Tq. Chikhali, 
     P.St. Amdapur, District Buldhana.                       ....       RESPONDENTS


 ______________________________________________________________

             Shri N.B. Jawade, Addl.P.P. for the appellant, 
            Shri R.D. Hazare, Advocate for the respondents.
  ______________________________________________________________

                              CORAM :  ROHIT B. DEO, J.

                            DATED    :    1
                                               SEPTEMBER, 2017
                                            st





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 ORAL JUDGMENT : 

The State is in appeal challenging the judgment and order

dated 05-1-2004 in Regular Criminal Case 81/1998, delivered by the

Judicial Magistrate First Class, Chikhali, by and under which the

respondent Nos.1 and 3 are convicted for offence punishable under

Section 323 read with Section 34 of the Indian Penal Code and are

sentenced to suffer simple imprisonment till rising of the Court and to

payment of fine of Rs.1,000/- each. Respondents 2 and 4 are acquitted

of all charges.

2. In so far as respondent Nos.1 and 3 are concerned, the

State is aggrieved by their acquittal for offence punishable under

Section 325 of the Indian Penal Code. Shri N.B. Jawade, learned

Additional Public Prosecutor would urge, that the evidence on record

clearly shows that P.W. 2 Pushpa suffered a fracture of collar bone in

the assault. The injury, according to the learned Additional Public

Prosecutor, is grievous and falls under Section 320, Seventhly "fracture

or dislocation of a bone or tooth". In so far as respondent 2 and 4 are

concerned, the learned Additional Public Prosecutor fairly states that

the State is not seriously objecting to their acquittal. The only

admissible evidence to prove the contention of the prosecution that

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Pushpa suffered a fracture of the collar bone is evidence of P.W.10 Dr.

Vijay Chopde, who is Orthopedic Surgeon. The learned Additional

Public Prosecutor invites my attention to the testimony of P.W.10 and

contends that P.W.10 not only proved the original x-ray plate but

further categorically asserted that Pushpa suffered fracture of the collar

bone.

3. Shri R.D. Hazare, learned Counsel for the accused would

urge, relying on the admissions given by P.W.10 in the cross-

examination, that the testimony of P.W.10 does not take the case of

the prosecution any further. He would urge that Pushpa was not

referred to P.W.10 either by the Government Hospital or by the

investigating agency. The incident occurred on 24-5-1998. Pushpa is

examined by P.W.10 on 30-5-1998. The learned Counsel for the

accused would urge that P.W.10 clearly admits in the cross-

examination that radiology is a specialized science, that he has not

mentioned in report Exhibit 68 as to whether the fracture was fresh or

old nor has P.W.10 mentioned any identification mark of the patient in

the report. The learned Counsel for the accused further urged that

admittedly the said witness did not produce the relevant record

pertaining to x-ray allegedly taken of P.W.2. He would invite my

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attention to the injury report and contends that there is no external

injury corresponding to the alleged collar bone fracture. He would

lastly submit that at any rate and in any event even if it is assumed

arguendo, that the diagnosis and report of P.W.10 is correct, the

possibility of that the collar bone fracture was suffered by Pushpa

(P.W.2) not in the alleged assault on 24-5-1998 but between 24-5-

1998 to 30-5-1998, cannot be conclusively ruled out.

4. I have given my anxious consideration to the reasoning of

the learned Magistrate for discarding the opinion of P.W.10. The

learned Additional Public Prosecutor does make a spirited attempt to

persuade me to hold that the evidence of the medical practitioner

P.W.10 is not only credit worthy, the evidence is corroborated by the

earlier MLC. However, since I am exercising appellate jurisdiction, I

am not inclined to interfere in the judgment of acquittal despite the

persuasive skills of the learned Additional Public Prosecutor who

makes out a case that a second view is possible. However, the

reasoning and the judgment impugned is certainly not perverse.

5. In this view of the matter, the appeal is rejected. The bail

bonds of the accused, if any, shall stand discharged.

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The respondents/accused 1 and 3 are in custody in view of

the execution of the non-bailable warrant issued by this Court. The

accused be released from custody forthwith.

A steno copy of the judgment be acted upon by the

concerned authorities.

JUDGE

adgokar