The State of Maharashtra v. Raju S/O. Sambhaji Paikrao and Anr

IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD APPLICATION FOR LEAVE TO APPEAL BY STATE NO. 65 OF 2019 The State of Maharashtra Through Police Station Offcerr Bhagyanagar Police Stationr Nandedr Dist. Nanded … Applicant. Versus

¶1Raju S/o. Sambhaji Paikrao Age : 34 yearsr Occupation : Medical Practitionerr

¶2Vijay S/o. Sambhaji Paikraor Age : 31 years; Occupation : Educationr R/o. Govind Colonyr Taroda (Bk.)r Nandedr Dist. Nanded … Respondents. (Orig. Accused) … Smt. V. S. Choudharir APP for Applicant - State ...

CORAM : SMT. VIBHA KANKANWADI AND

ABHAY S. WAGHWASEr JJ.

DATED : 07th JULYr 2023 ORDER (PER ABHAY S. WAGHWASEr J.) :

¶1Being aggrieved by the judgment and order of acquittal passed by learned Additional Sessions Judge-2r Nanded in Criminal Appeal No.37 of 2011r dated 19.12.2018 arising out of judgment and order passed by learned Judicial Magistrate First Classr Nanded in Regular Criminal Case No. 919 of 2006r dated

11.04.2011r State has preferred instant application praying to grant leave to fle appeal under Section 378(1) of the Code of Criminal Procedure.

¶2Bhagyanagar Police Stationr Nanded charge-sheeted present respondents for commission of offence under sections 326r 324 and 504 read with section 34 of Indian Penal Coder in the backdrop of FIRr wherein it was alleged thatr on 01.07.2006 respondents assaulted informant by means of stick and rodr causing him grievous injury. At trial before learned Judicial Magistrate First Classr Nanded prosecution adduced evidence of in all 08 witnesses. On appreciating the oral and documentary evidencer learned Judicial Magistrate First Class accepted the case of prosecution as proved and thereby vide judgment and order dated 11.04.2011 held respondents Raju and Vijay guilty of committing offences under sections 326r 324 and 504 read with 34 of IPC and sentenced them to suffer simple imprisonment for two years and to pay fne.

¶3Such judgment and order of conviction was taken exception to by present respondents by fling Criminal Appeal No. 37 of 2011 before the learned Additional Sessions Judge-2r Nandedr who on hearing both sides and on appreciating the evidencer reached to a fnding that on scrutiny of entire evidence of prosecutionr it was apparent that prosecution had not proved its case beyond reasonable doubt. Thatr evidence of witnesses which was interested oner was without independent corroboration; that medical evidence did not support ocular account and for the reasons stated in the judgmentr more particularly in para 27 and 28r allowed the appeal by setting aside the judgment and order passed by learned Judicial Magistrate First Class.

Feeling aggrieved by the abover now State intends to question the said judgment and order passed by learned Additional Sessions Judger Nandedr hence the instant application praying for leave to do so.

¶4Learned APP appraised us about nature of charge and the case of prosecution in the trial court. She would strenuously submits that informant (PW-1) is himself injured. Thatr in his evidence at Exhibit-37r he has narrated that on 01.07.2006r when he went to enquire with the accused for abusing his younger brotherr that time respondents assaulted him by stick on head resulting into bleeding injury. Thatr informant had defned the role of accused persons. His evidence has not been disturbed or rendered doubtful in spite of lengthy cross. Thatr informant's evidence was also supported by PW-2 Santosh and PW-3 Vaishali and both have also narrated what they saw about assault on PW-1 by accused persons. It is submitted that there is overwhelming direct evidence on record. Thatr medical expert who examined and treated the injured was also examined by prosecution. Panchanamas were proved. Thatr there was recovery of article at the instance of accused persons and therefore prosecution had established their case by leading cogent and reliable evidence. Howeverr according to learned APPr such evidence has not been appreciated by learned trial Judge. Thatr in fact learned JMFC had correctly appreciated the available evidence and had recorded the guilt of accused in spite of so the Appellate Court had misconstrued and not properly appreciated the available evidence and has reached to erroneous conclusion. Thereforer learned APP submits that State has good case for appeal and hence the leave.

¶5In the light of above submissionsr we have visited the evidence available on record. PW-1 Sunil is the informantr who lodged FIR (Exh.38). PW-2 Santosh seems to be the brother of PW-1 Sunil and PW-3 Vaishali seems to be wife of PW-2 Santosh. All these three witnesses have stated in the witness box that alleged incident took place on 01.07.2006 at around between 7:00 to 7:30 p.m. According to PW-1 Sunilr due to assault by stick on the headr there was bleeding injury and also he suffered injuries on both legs. When his brother PW-2 Santosh camer he was also beaten by accused on head. PW-2 Santosh stated that on being questioned for lifting wooden logsr his brother PW-1 Sunil was abused and thereafter beaten with stick on the head. Accused Shrirang gave fst and kick blows and dragged his brother PW-1 Sunil and again beat him. According to himr accused persons assaulted his brother by means of rod on the forehead. PW-3 Vaishalir who is wife of PW2 Santosh also stated that accused Shrirang was abusing her husband. That timer when her brother-in-law PW-1 Sunil came and questioned the accusedr that time accused initially gave him fst and kick blows and then they took her husband and brother-in-law towards their house and beat them with sticks and iron rod on head and forehead resulting into bleeding injuries.

¶6As noted abover in trial court prosecution has adduced evidence of treating doctor PW-8 Dilip who had occasion to examine injured in Civil Hospitalr Nanded. Medical expert in his evidence at Exhibit-58 stated that he noticed CLW and two contusions on both the legs of PW-1 Sunilr whereas on examining PW-2 Santoshr he came across CLW over forehead and contusions over both legs. PW-1 Sunilr PW-2 Santosh and PW-3 Vaishali are all deposing about assault by iron rod. Howeverr in the FIR on the strength of which law was set into motion i.e. Exh.38r aspect of use of iron rod is conspicuously missing and even Investigating Offcer seems to have admitted to that extent. We have noticed that occurrence is of 01.07.2006r respondents as per charge-sheet was arrested on 05.07.2006 at around 12:30 p.m. Howeverr Exh.51 which is said to be seizure memo of iron rodr time is noted that seizure was at around 12:00 noon. Thereforer if above evidence is taken into account it is emerging that seizure is shown to be done even prior to arrest.

¶7Defence raised by respondents herein was that injured persons PW-1 Sunil and PW-2 Santosh were both under infuence of liquor and they have suffered injuries due to fall. PW-8 Dilipr Medical Offcer seems to have confrmed that injured were under infuence of liquor when he examined them. Doctor has agreed that injuries noticed by him are possible on account of fall on hard surfacer whereas it was the case of PW-1 Sunil being draggedr they ought to have grazing injuriesr but no such injuries are noticed by PW-8 Dilip and hence not stated by him to that extent. It is also important to note that all witnesses i.e. PW-1 Sunilr PW-2 Santosh and PW-3 Vaishali are unequivocal about PW-1 Sunil suffering bleeding injuryr then PW-8 Dilip ought to have noticed bleeding injury to that extent and if at all it was so.

¶8Thereforer admittedly there is previous enmity between injured party and original convictr possibility of false implication cannot be ruled out or possibility of false and afterthought exaggerated version given cannot be ruled out. Medical evidence suggests injuries to be also on account of fall under infuence of liquor. Thereforer defence has succeeded in creating doubt over the prosecution story. Howeverr learned Judicial Magistrate First Class does not seems to have appreciated the evidence of so called witnesses who were close relatives cautiously. Medical evidence had not confrmed the nature of injuries narrated in substantive evidence. Thereforer learned Appellate Court seems to have extended beneft of doubt. We have gone through the judgment under challenge. In our opinionr testimonies of PW-1 Sunilr PW-2 Santosh and PW-3 Vaishalir answers given by them in cross-examination and the evidence of medico legal expert available on record has been correctly appreciated. Thereforer we too agree with the fndings reached at the learned trial court that case of prosecution has not been proved beyond reasonable doubt and therefore respondents were rightly acquitted. No case is made out for grant of leave and hence we proceed to pass following order:- ORDER

(i) Application for leave to fle appeal by State stands rejected. (ABHAY S. WAGHWASEr J.) (SMT. VIBHA KANKANWADIr J.)

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