Shantaram Wasudeo Pidurkar vs State Of ...
2017 Latest Caselaw 7553 Bom

 apeal685.02.J.odt                         1



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

                     CRIMINAL APPEAL NO.685 OF 2002

          Shantaram Wasudeo Pidurkar
          Aged about 40 years,
          Occupation: Labourer,
          Resident of Village Yendli,
          Mouza Yendli, District Chandrapur. ....... APPELLANT

                                   ...V E R S U S...

          State of Maharashtra through
          PSO Chandrapur City Police Station,
          District Chandrapur.                               ....... RESPONDENT
 -------------------------------------------------------------------------------------------
          Shri A.D. Hajare, Advocate for Appellant.
          Shri A.V. Palshikar, APP for Respondent/State.
 -------------------------------------------------------------------------------------------

          CORAM:            ROHIT B. DEO, J. 

          DATE:                th
                            26    SEPTEMBER, 2017.


 ORAL JUDGMENT



 1]               The   appellant   seeks   to   assail   the   judgment   dated

24.10.2002 in Sessions Case 3/1998 delivered by the 3 rd Ad hoc

Additional Sessions Judge, Chandrapur, by and under which, the

appellant (herein after referred to as "the accused") is convicted of

offence punishable under section 307 of I.P.C. and is sentenced to

suffer rigorous imprisonment for three years and to payment of

fine of Rs.500/.

2] The case of the prosecution, as is unfolded during the

trial, is that between 08:30 to 09:00 p.m. on 10.11.1997 the

accused assaulted Ishwar Naitam by a Tifan (a seed sowing

instrument) and committed offence punishable under section 307

of I.P.C.

The case of the prosecution is that on 10.11.1997 at

about 08:00 p.m. the accused went to the house of the injured

Ishwar Naitam and demanded Tifan, which is an agricultural

instrument used to sow seeds. Ishwar refused to oblige since his

sowing work was incomplete. The accused then started towards

the field of Ishwar Naitam. The accused was followed by Ishwar

an alteration ensued between two and the accused assaulted

Iswhar with the help of wooden stick, presumably the handle on

Tifan. Since Ishwar did not return from the field, the complainant

Gangubai who is the wife of Ishwar, went to the field and found

her husband lying unconscious. Gangubai alerted the villagers and

her relatives admitted Ishwar to the Chandrapur Hospital and

lodged a report at the police post at Civil Hospital. Ishwar was

referred to Government Hospital, Nagpur and on the basis of the

report lodged by the complainant the accused was arrested on

11.11.1997. The statement of Ishwar was recorded on 24.12.1997

after he regained consciousness. The completion of the

investigation led to submission of the charge-sheet in the Court of

J.M.F.C., Chandrapur who committed the case to the Sessions

Court. The defence of the accused is of total denial and false

implication.

3] Shri Hajare, the learned counsel for the accused

submits that the prosecution has miserably failed to bring home

the charge under section 307 of the I.P.C. Inviting my attention to

the evidence of the injured P.W.6, the learned counsel Shri Hajare

would submit that the admissions given in the cross-examination

would demolish the case of the prosecution totally.

4] Per contra, Shri Palshikar, the learned A.P.P. submits

that the evidence of Gangubai and that of the injured is amply

corroborated by the seizure of clothes from the accused on which

signs of stains of human blood are noticed. He would invite my

attention to the report of the chemical analyzer Exh.9 to buttress

the submission that the presence of the human blood on the

clothes of the accused is a corroborative piece of evidence.

Shri Palshikar would submit that there is no reason why the

evidence of the injured should not be held believable and

acceptable. The evidence of an injured witness is on higher

pedestal than that of other witnesses, is the submission.

The learned A.P.P. would submit that the fact that the witness is

injured lends assurance to his presence on the spot and the

injured witness is not likely to guilty absolve the implicate an

innocent.

5] The learned A.P.P. is right in contending that the

evidence of the injured must receive due consideration on the

anvil that the injured witnesses is not likely to exonerate the guilty

and implicate an innocent. However, in view of the admissions

extracted in the cross-examination of the injured P.W.6, it is

difficult to treat the testimony of the injured as implicitly reliable.

The evidence, falls short of proving the offence beyond any

reasonable doubt. In the cross-examination of the injured P.W.6

the following admissions are extracted:

"The period of incident was of Winter season and there was dark night. One could not see the road without lantern. I could not see who came in my field due to darkness. I could not understand who assault me. I cannot tell the date and day of the incident."

6] In view of the admission given by the injured,

assertion in the examination-in-chief that it was the accused who

assaulted him is rendered unreliable and untrustworthy. In so far

as the complainant is concerned, even if her evidence is accepted

at face value, she has only witnessed the accused going in a

particular direction and then the injured following him.

Her evidence is not sufficient to establish that after the accused

allegedly left her residence he must necessarily have gone to the

agricultural field of the complainant's husband. The evidence of

the complainant, even if accepted in its entirety, would only prove

that the accused came to the residence of the complainant and her

husband and sought to borrow Tifan and the injured P.W.6

refused to oblige. Her evidence does not take the case of the

prosecution any further.

7] I am afraid, the accused cannot be held guilty of

offence punishable under section 307 of I.P.C. on the basis of the

evidence on record. The evidence does sow seeds of suspicion, but

then it is well settled that suspicion however strong can not

substitute proof. The accused is entitled to be presumed innocent

till his guilt is conclusively established beyond reasonable doubt.

In view of the admissions extracted from the injured P.W.6, I am

not inclined to hold that the prosecution has proved the offence

beyond reasonable doubt. The accused is entitled to the benefit of

doubt and to acquittal of offence punishable under section 307 of

the Indian Penal Code.

  8]               The judgment impugned is set aside.



  9]               The fine paid by the accused, if any, be refunded to

  him.



  10]              The appeal is allowed.



                                                JUDGE



NSN