Vijay S/O Uttamrao Takore vs Subhash Jagannath Reche
2021 Latest Caselaw 406 Bom

                                              1                                cr-appeal-236.19.odt



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

                         CRIMINAL APPEAL NO. 236 OF 2019


  Vijay s/o Uttamrao Takore,
  Aged about 59 years, Occ. Agriculturist,
  R/o Dahigaon Reche, Tq.Anjangaon Surji,
  District - Amravati.                                                      . . . APPELLANT

                         ...V E R S U S..

  1. Subhash Jagannath Reche,
     aged about 54 years,
     Occu. Agriculturist.

  2. Shrikant Shankarrao Reche,
     aged about 29 years, Occu. Agriculturist,

     Both R/o. Dahigaon Reche, Tq. Anjangaon
     Surji, District - Amravati.

  3.State of Maharashtra,
    Through Station Officer,
    Police Station Anjangaon Surji,
    District Amravati.                                                 . . . RESPONDENTS

 --------------------------------------------------------------------------------------------------
 Shri P .V. Navlani, Advocate for the Appellant.
 None for respondent nos.1 and 2.
  Shri T.A.Mirza, Additional Public Prosecutor for respondent no.3.


                           CORAM :          Z. A. HAQ AND
                                            AMIT B. BORKAR, JJ.

                           DATED :         08.01.2021.


 ORAL JUDGMENT (PER : AMIT B. BORKAR, J.) :





                                          2                          cr-appeal-236.19.odt



 1.                    The     present appeal takes exception to the judgment

and order dated 07.12.2018 passed by the learned Additional Sessions

Judge-1, Achalpur in Sessions Trial No.13 of 2016, thereby the accused

Nos.1 and 2 are acquitted of offence punishable under Section 326 read

with Section 34 of the Indian Penal Code.

2. The case of the prosecution in nutshell, is as under:

The fields of Vijay Takore and the accused persons are

adjacent to each other at village - Palaskhed, Taluka Anjagaon Surji,

District Amravati. The D.P. from which there was electricity connection

to the field of injured Vijay Takore was burnt. Therefore, Vijay arranged

diesel motor-pump for irrigating his field. On 23.08.2014 in the

morning, he had carried diesel for running diesel motor-pump for

watering his crops. It is stated that while Vijay Takore was in his field,

the accused nos.1 and 2 alongwith Akshay Reche, son of the accused

no.1, came to his field and told him that Vijay Takore created fault in

their electricity connection and due to which, the electricity was

disrupted. They assaulted Vijay by crowbar and stick, due to which he

became unconscious. The condition of Vijay Takore was serious. On

30.08.2014, the wife of Vijay Takore filed report with Police Station,

Anjangaon Surji, which came to be registered as Crime No.167 of 2014

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for the offence punishable under Section 326 read with Section 34 of

the Indian Penal Code.

3. During the course of investigation, the Investigating Officer

conducted panchanama of the place of incident and arrested both the

accused and seized one iron rod and stick, recorded statements of

material witnesses, sent muddemal property to the Chemical Analyst

and collected injury reports from the hospital. On completion of the

investigation, the Investigating Officer filed charge-sheet in the Court of

the Judicial Magistrate First Class, Anjangaon Surji. While the case was

pending in the Court of Judicial Magistrate First Class, Anjangaon Surji,

it was brought to the notice of the learned Magistrate that Crime

No.166/2014 for the offence punishable under Section 302 of the

Indian Penal Code has been registered, arising out of the same incident

and, therefore, the case was committed to the learned Sessions Judge,

Achalpur and was registered as Sessions Case No.13 of 2016.

4. The charges were framed against the accused for offence

punishable under Section 326 read with Section 34 of the Indian Penal

Code. Both the accused pleaded not guilty and claimed to be tried. The

defence of the accused, as per the statement under Section 313 of the

Code Criminal Procedure and the manner of cross-examination was of

denial and false implication. It was also suggested that Vijay Takore and

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his brother assaulted Akshay in the field of the accused and dealt blows

of crowbar on his head.

5. After recording the evidence and after hearing both sides,

the Trial Court acquitted both the accused, as the prosecution failed to

prove the case beyond reasonable doubt. Hence, the present appeal.

6. We have heard Shri P. V. Navlani, learned Advocate for the

appellant-Victim and Shri T.A.Mirza, learned Additional Public

Prosecutor for the respondent no.3 for considerable length. We have

perused the evidence of the witnesses examined by the prosecution,

material exhibits tendered and proved by the prosecution, the

statements of the respondents recorded under Section 313 of the Code

of Criminal Procedure and the impugned judgment and order.

7. As per the evidence of Dr. Tirupati Rathod (PW 7) attached

to the Rural Hospital, Anjangaon Surji, Vijay Takore was brought to his

hospital with head injury. On examination, he found that Vijay Takore

had sustained contused lacerated wound over mid parietal region

measuring 10 cm. x 2 cm. x 1 cm. In his opinion, it was caused by hard

and blunt object and the age of injury was within one hour. In the

cross-examination, he admitted that in order to ascertain internal injury,

it was necessary to perform C.T.Scan and without C.T. Scan, impact on

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the internal organs could not have been ascertained. The prosecution

has not placed on record any document in respect of the treatment

given to the injured Vijay Takore at Civil Hospital, Amravati. Even, his

Discharge Card is not collected by the Investigating Officer. As such,

there is no evidence to conclude that he had sustained fracture of skull

or any damage was caused to the internal organs of Vijay Takore.

Therefore, the prosecution failed to establish that wound sustained by

Vijay was grievous hurt within the meaning of Section 320 of the Indian

Penal Code.

8. The evidence of Vandana (PW 1), who filed the First

Information Report on 30.08.2014 is hear-say. She filed report, as per

disclosure made by her husband Vijay Takore on the next day of his

admission. Thus, the evidence of Vandana (PW 1) does not disclose

commission of offence by the accused persons.

9. The only evidence produced by the prosecution to prove

the offence under Section 326 of the Indian Penal Code is the

testimony of injured Vijay Takore (PW 2) himself. As per the testimony

of Vijay (PW 2) on receiving assault of the crowbar, deceased Akshay

fell down and thereafter he sustained assault of the crowbar on his

head, due to which he sustained bleeding injury and became

unconscious. Thus, as per his evidence, Akshay Reche fell down, due to

6 cr-appeal-236.19.odt

the injury in the same incident. Therefore, it is highly improbable that

witness Vinod Takore (PW 5) and Misru Uike (PW 6) could have seen

him walking towards the accused nos.1 and 2, which creates doubt in

the prosecution case. As per the evidence of Vijay Takore (PW 2), the

accused no.2 assaulted him on his neck and back by iron rod. The iron

rod is hard and blunt object. If, it is used as a weapon of offence, it is

likely to cause contusion or at least abrasion. Dr. Tirupati Rathod

(PW 7) found only one contused lacerated wound on the scalp of Vijay

Takore (PW 2). Therefore, there is no corroborative evidence in respect

of assault by the iron rod by the accused no.2.

10. In the present case, there is inordinate delay in filing the

report and recording statements of the material witnesses. The delay

has not been explained by the prosecution. Both the prosecution

witnesses i.e. injured Vijay Takore (PW 2) and Vinod Takore (PW 5) are

the accused for offence punishable under Section 302 of the Indian

Penal Code for having committed murder of deceased Akshay Reche,

who according to the prosecution case, were also present at the time of

incident. Thus, the possibility of false implication of the accused

persons in order to save themselves of offence punishable under Section

302 of the Indian Penal Code cannot be ruled out. There is no evidence

before the Sessions Court to conclude as to who was aggressor in the

incident. In such circumstances, benefit goes to the accused. The

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evidence of Vijay Takore (PW 2) is not corroborated on the material

particulars by oral evidence of other witnesses brought on record.

11. Taking into consideration the overall facts and

circumstances brought on record by the prosecution, we are of the view

that the prosecution has failed to prove beyond doubt that the accused

nos.1 and 2 have committed offence punishable under Section 326 of

the Indian Penal Code.

12. Pursuant to the above discussion, we are satisfied that the

instant case is a fit case, in which the respondents, deserve benefit of

doubt and we propose giving them the benefit of that doubt.

13. It is settled law that in case of an appeal against acquittal,

the Appellate Court can interfere only if the judgment of the Trial Court

is perverse or manifestly illegal. The Hon'ble Supreme Court has laid

down that if reasoning given by the Trial Court is plausible, simply

because the different line of reasoning can be given or adopted, the

Appellate Court should not interfere in an appeal against acquittal.

Keeping in view the settled legal position, we have examined the

judgment of the Trial Court. We find that the reasoning given by the

learned Sessions Judge is acceptable and convincing. The judgment of

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the Trial Court cannot be said to be perverse. Equally, it can be said that

the Trial Court has not committed any manifest illegality.

14. Hence, the following order:

 (i)              Criminal Appeal is dismissed.

 (ii)             Bail bonds of the respondents stand cancelled.

 (iii             Muddemal properties be disposed, as per the directions of

 the Sessions Court, Achalpur.

Criminal Appeal is disposed of in the above terms.

                           JUDGE                                        JUDGE

 ambulkar