Anil Dharamraj Jadhav vs Vinod Prabhakar Jadhav And Ors
2022 Latest Caselaw 7949 Bom

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                                 IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                                       CRIMINAL APPELLATE JURISDICTION

                                             CRIMINAL APPEAL NO.862 OF 2019

                       Anil Dharamraj Jadhav                               ..... Appellant
                                  Versus
                       Vinod Prabhakar Jadhav
                       and others                                          .... Respondents
                                                       -----
                       Ms. Surbhi Agrawal, Advocate i/b. Abhishek Yende, for the
                       Appellant.
                       Mr. Sanjeev Sawant, Advocate a/w. B.K. Barve, Sandeep Barve
                       i/b. B.K. Barve and Co. for Respondent Nos.1 & 2.
                       Smt. Veera Shinde, APP for Respondent No.3-State.
                                                       -----

                                                         CORAM :SARANG V. KOTWAL, J.
                                                         DATE  : 17th AUGUST, 2022

                       P.C. :

                       1.                  Respondent Nos.1 & 2 had faced the trial along with

                       two others before the Judicial Magistrate, First Class at
PRADIPKUMAR
PRAKASHRAO
DESHMANE

 Digitally signed by
 PRADIPKUMAR
                       Pimpalgaon Baswant, District-Nashik in R.C.C. No.49/2009. Vide
 PRAKASHRAO
 DESHMANE
 Date: 2022.08.18
 10:36:27 +0530

                       judgment and order dated 20.8.2015, the trial Court convicted

                       the respondents No.1 & 2 for commission of the offence

                       punishable under Sections 323 and 325 of IPC and they were

                       sentenced to suffer SI for three months each and to pay fine of

                       Rs.5000/- each and in default of fine to suffer SI for one month

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                            Deshmane(PS)
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each. The other two accused were acquitted.

2.         Respondent Nos.1 & 2 then challenged this judgment

and order before the Additional Sessions Judge, Niphad vide

Regular Criminal Appeal No.35/2015.      The learned Additional

Sessions Judge, Niphad by his order dated 19.3.2019 allowed the

appeal and acquitted the respondents Nos.1 & 2.

3.         Heard Ms. Surbhi Agrawal, learned counsel for the

appellant, Shri Sanjeev Sawant, learned counsel for the

respondents Nos.1 & 2 and Smt. Veera Shinde, learned APP for

the respondent No.3-State.

4.         Learned counsel for the appellant invited my attention

to the deposition of the first informant Anil Jadhav, who

according to the prosecution case, has suffered fracture of his

right knee. He has described the incident dated 26.1.2009. He

has stated that all the accused had abused and assaulted him

because of the land dispute. He was assaulted with stick, kick and

fist blows. His version was supported by other two eye witnesses

i.e. PW-2 Sharad Kamble and PW-3 Nitin Jadhav. He has deposed

that the stick was in the hand of respondent No.1 Vinod Jadhav.


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PW-3 Nitin Jadhav has deposed that Vinod Jadhav was having a

stick, but, the stick blows were given by respondent No.2 Nitin.

5.           Learned counsel for the appellant i.e. the first

informant also relied on the evidence of PW-8 Dr. Vijay Barve. He

has deposed that on 14.2.2009, the appellant had gone to his

clinic. PW-8 had taken X-ray which revealed that the appellant

had sustained small chip fracture on his right lateral tibial

coundyle.

6.           Learned counsel for the appellant submitted that the

Appellate Court has not considered these pieces of evidence in the

proper perspective. She submitted that the trial Court had rightly

convicted the respondents No.1 & 2.

7.           Learned counsel for the respondents No.1 & 2

submitted that there was a gap of about fifteen days from the date

of incident and when Dr. Barve i.e. PW-8 has examined the

appellant. The Sessions Judge has rightly observed that there was

no link between the incident and PW-8's evidence. He further

submitted that there is discrepancy in the versions of the eye

witnesses.


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8.                All these aspects will have to be considered in detail

at the time of final hearing of the appeal. PW-6 Dr. Vaishali

Bhadane had immediately examined the appellant and at that

time she had found seven injuries. There were injuries on left

knee, right knee, elbow and lower lip. There was periorbital

swelling on both eyes. There was contusion over right poplitel

fossa. Therefore, obviously the appellant was assaulted and there

is immediate medical examination supporting his case of assault.

Thus, the appellant has made out a case for admission of the

appeal. Hence, the following order :

                                :: O R D E R ::

i. Appeal is admitted.

ii. Call R & P with paper books.

iii. Action under Section 390 of Cr.P.C. be taken by the trial

Court against the respondents Nos.1 & 2.

(SARANG V. KOTWAL, J.) Deshmane (PS)

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