Bombay High Court
Mohit S/O Subhash Sarap vs The State Of Mah Thr Pso,Jalgon ... on 20 January, 2021
Bench: Pushpa V. Ganediwala
233apeal 103.2009 1
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR.
CRIMINAL APPEAL NO. 103 OF 2009
Mohit s/o Subhash Sarap,
aged about 21 years, Occ. Student,
R/o Jalgaon Jamod, Tq. Jalgaon Jamod,
District Buldhana.
...APPELLANT
Versus
State of Maharashtra,
through PSO, Police Station Jalgaon Jamod.
...RESPONDENT
Shri A.V. Bhide, Advocate for the appellant.
Shri M.J. Khan, A.P.P. for the respondent.
.....
CORAM : PUSHPA V. GANEDIWALA, J.
DATED : JANUARY 20, 2021.
ORAL JUDGMENT :
Heard.
2. This appeal is directed against the judgment and
order dated 03/02/2009 passed by the Ad-hoc Addl. Sessions
Judge, Khamgaon in Sessions Trial No. 65/2005, whereby the
appellant/accused is convicted for the offence punishable under
Section 324 of the Indian Penal Code, 1860 (for short "IPC"),
and is sentenced to suffer rigorous imprisonment for two years
and to pay fine of Rs.5,000/- (rupees five thousand), in default,
to suffer further rigorous imprisonment for three months.
3. The case of the prosecution, in nutshell, is as
under :
i. On 16/05/2005, the informant Tejrao Bhaurao Patil
(father of the deceased Pawan) (PW1) lodged a written
complaint with the Police Station, Jalgaon, against the
appellant/accused along with his friends for voluntarily causing
grievous hurt to his son Pawan, stating therein that on
10/05/2005, at around 5.00 to 6.00 pm, when his son Pawan
went to the college ground for playing cricket, the
appellant/accused along with his friends, including the co-
accused Amol Deshmukh, came there and assaulted his son
Pawan by means of fists and kick blows, as a result of which he
sustained injuries on his head and other parts of the body.
Thereafter, he was admitted to Dr. Jadhav's hospital, from
where he was referred to Dr. Mantri, Khamgaon. That on
20/05/2005, he succumbed to the injuries.
ii. On the basis of the aforesaid report, the First
Information Report No. 58/2005 came to be registered against
the appellant/accused and others for the offence punishable
under Sections 326 and 324 read with Section 34 of the IPC.
iii. Police started investigation. During investigation,
offence punishable under Section 302 of the IPC came to be
added. After completion of investigation, the chargesheet came
to be filed against co-accused Amol Deshmukh (acquitted) and
the present appellant before the Court of Magistrate, who in
turn, committed the case to the Sessions Court. The Sessions
Court framed charge against the appellant/accused and the
other co-accused Amol for the offence punishable under Section
302 read with Section 34 of the IPC. The charge was read over
and explained to them in their vernacular, to which they
pleaded not guilty and claimed trial. Their pleas were recorded.
Their defence were of total denial.
iv. In order to prove guilt against the accused persons,
the prosecution examined in all ten witnesses, and also brought
on record relevant documents. The Sessions Court recorded the
statements of the accused persons under Section 313 of the
Code of Criminal Procedure, 1973. After hearing both the sides,
the Sessions Court found that the prosecution has failed to
prove the charge of murder against the accused persons,
however, it could prove charge of voluntarily causing hurt by
the appellant to the deceased Pawan, which is punishable under
Section 324 of the IPC. Accordingly, the Sessions Court
acquitted the co-accused Amol and convicted the
appellant/accused for the offence punishable under Section 324
of the IPC. This judgment is impugned in this appeal.
4. I have heard Shri Bhide, learned counsel for the
appellant/accused, and Shri Khan, learned APP for the State.
5. At the outset, though, the prosecution has examined
ten witnesses, but none of them deposed that they have seen
the appellant/accused voluntarily causing hurt to the deceased
Pawan. None of the alleged eye-witnesses i.e. Tushar (PW3) and
Nikhil (PW9), supported the case of the prosecution. The
medical witness Ashwinikumar (PW5) deposed about the
antemortem injuries found on the body of the deceased Pawan,
and that he opined that the probable cause of death was "head
injury".
6. The prosecution also could not bring on record
chain of circumstances, leading to fix the liability against the
appellant/accused. Shri Khan, learned A.P.P., submitted that the
eye witness Tushar (PW3), despite being declared as hostile,
deposed that he saw the incident of pushing between the
appellant/accused and the deceased. This single statement with
regard to incident of pushing, in view of this Court, is not
sufficient to convict the appellant/accused for any offence, as it
is not clear as to who was pushing to whom.
7. Learned A.P.P. also harped on the point of recovery
of two finger rings at the instance of the appellant/accused.
This also is not of any assistance to
the case of the prosecution, as there is nothing on record to
show that any of the injuries, sustained by the deceased Pawan,
was due to finger rings. A perusal of the impugned judgment
would reflect that the Sessions Court convicted the
appellant/accused solely on the basis of medical report, which is
unsustainable in law.
8. In this view of the matter, this Court has no
hesitation in reaching to the conclusion that the prosecution has
miserably failed to prove the guilt against the
appellant/accused. Hence, I proceed to pass the following order
:
ORDER.
i. The Criminal Appeal is allowed.
ii. The judgment and order dated 03/02/2009 passed
by the Ad-hoc Addl. Sessions Judge, Khamgaon in Sessions Trial
No. 65/2005, is quashed and set aside. The appellant is
acquitted of the offence punishable under Section 324 of the
IPC.
iii. The bail bond of the appellant stands cancelled and
sureties stand discharged.
JUDGE
******
Sumit
