Jaibhagwan Manful Subhedar vs The State Of Mah. Thr P.So. P.S. ...
2022 Latest Caselaw 6042 Bom

                                            1                        36 Appeal-382-2019.odt


           IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                     NAGPUR BENCH, NAGPUR
                      CRIMINAL APPEAL NO.382 OF 2019
  (Jaibhagwan Manful Subhedar .Vs. The State of Maharashtra and Ors.)
Office Notes, Office Memoranda of Coram,
appearances, Court's orders of directions                     Court's or Judge's order
and Registrar's orders.
                   Shri P. P. Kotwal, Advocate for Appellant.
                   Shri M. K. Pathan, APP for the Respondent No.1/State.
                   Shri M. S. Gupta, Advocate for the Respondent Nos.2 to 5.


                  CORAM : AVINASH G. GHAROTE, J.

                  DATE          : 29th JUNE, 2022.


                 .       Heard Shri Kotwal, learned Counsel for the
                 Appellant.

2. The Appeal seeks quashing of the judgment dated 04.03.2017 acquitting the Accused for the offence punishable under Sections 498-A and 306 read with Section 34 of the Indian Penal Code, on the ground that there has been miscarriage of justice on account of material witnesses not having been examined.

3. Shri Kotwal, learned Counsel for the Appellant submits as under:

a) That, statements of as many as twelve persons were recorded by the Police, however, only three witnesses were examined PW-1-Jaibhagwan Manful Subhedar-Appellant the father of the deceased Jyoti (Exh-28 Page no. 1 of Pursis dated 28.12.2018) :

2 36 Appeal-382-2019.odt

PW-2 Soniya Sudhirsingh Sivach sister of the deceased (Exh-35 Page no.14 of Pursis) and PW-3 Baleram Mirsingh Dhankad maternal uncle of the deceased (Exh-37 Page no.23 of Pursis). It is his contention, that material witnesses who speaks about the harassment and specifically Shabnam Ara and Neelam Bhupendra Tiwari the immediate neighbors were not examined.

b) The postmortem report was not exhibited by examining the Doctor. The postmortem report indicates nine antemortem injuries, which are indicated in column 17.

c) The spot panchanama has also not been proved by examining the panch witness.

d) The Investigating Officer also has not been examined.

e) By inviting my attention to question no.26 in the statement, under Section 313 of the Cr. P. C., of Sukhbirsingh Ajmersingh Sivach (Accused no.1), he points out, that the answer to the question is in the affirmative, which would indicate that the death of Jyoti was homicidal. Similar is the answer to question no.26 in the statement of Accused no.2- Ajmersingh Dharasingh Sivach (Exh-51 Page 48 of Pursis) and the Accused no.3-Birmatidevi W/o 3 36 Appeal-382-2019.odt

Ajmersingh Sivach and Sudhirsingh S/o Ajmersingh Sivach Accused no.4.

4. He therefore submits, that this is a fit case for remand for which purpose, he relies upon Zahira Habibulla H. Sheikh and another ..Vrs.. State of Gujrat and others, AIR 2004 SC 3114 (Paras 8 to 24, 33 to 39, 41 to 46, 49 to 60, 63 to 67, 71, 72, 74, 76, 78, 81 and 82).

5. Shri M. K. Pathan, learned Additional Public Prosecutor for the Respondent No.1/State submits, that the copies of the deposition have not been supplied to him, whereupon Shri Kotwal, learned Counsel for Appellant undertakes to supply the copies of the deposition to Shri Pathan, learned APP during the course of the day.

6. List the matter on 01.07.2022 for further consideration.

JUDGE

Digitally signed byASHISH TAMBE.

ASHOKRAO TAMBE Signing Date:30.06.2022 10:33