MANGESH VASANTRAO DESHPANDE Vs. GANESH SHIVRAMJI MEHARE

JUDGEMENT

(1.) Heard.

(2.) The applicant, who is the first informant, lodged F.I.R. No. 262/2011 at Old City Police Station, Akola, on 17/11/2011, under Sections 325, 307 read with Section 34 of the Indian Penal Code alleging that on 25/11/2011 at about 5:15 a.m., he, in order to attend his duty, had started on his motorcycle to Railway Station, as he was required to travel by Navjeevan Express to the place of his employer. According to the first informant, while his motorcycle was near Maharana Pratap Square, three persons came across to his motorcycle from the direction of Godbole Plot and one of them assaulted the first informant by means of iron pipe. The assailants were known to the first informant by name Ganesh Mehare, resident of Ganesh Nagar, along with Ganesh Raut was also present, who had assaulted on the hands and legs of the first informant by means of pipe. In the result, the first informant fell down. The third person, who had also assaulted the first informant by means of pipe, was unknown to the first informant by name but known to the first informant by face. The first informant could recognize the assailants because of clear visibility due to halogen lights. While the first informant was lying injured on the ground, some pedestrians rushed to save him and, therefore, all the assailants fled away on their motorcycle. Ashu Wankhede, Sagar and other persons carried the first informant in injured condition to the Old City Police Station. The police had referred the first informant for medical aid to Survopchar Rugnalaya , Akola. The persons, who carried the first informant to the hospital and earlier to the Police Station, also told to the first informant that they knew the assailants. Later on, the first informant was admitted in Private Hospital of Dr. Vishal Bhagwat. During the treatment, the F.I.R. came to be registered on 27/11/2011. According to the first informant, there was previous enmity between the families of first informant and accused Ganesh Mehare. A civil suit was pending in the Court between them in respect of dispute over a plot and on that ground Ganesh Mehare, Ganesh Raut and one more unknown person conspired together and assaulted the first informant by attempting to murder him. In the past also, Ganesh Mehare and his associates had attacked the house of first informant, and for that incident also, a complaint was lodged at Police Station. After this complaint was lodged by the first informant on 27/11/2011, police referred the first informant for medical examination to Medical College and Hospital at Akola. The Medical Officer noted history of alleged assault from the patient and observed the following injuries.

(3.) It appears that police had obtained fitness certificate from Doctor concerned in order to record statement of the injured person. Prima facie it appears from the medical certificate issued by Dr. Vishal Bhagwat, M.B.B.S, D.ORTHO., CPS Mumbai, that the first informant Mangesh had head injury for which suturing was done at Civil Hospital, Akola. He also noted fracture at distal 1/3 ulna left side, fracture 5 th Metacarpal left side, fracture third metacarpal right side and undisplaced fibula fracture left side. The patient was admitted in the hospital of Dr. Vishal Bhagwat on 26/11/2011 and operated for fracture ulna left side by nailing on 27/11/2011. Even the statement in the nature of dying declaration was recorded by Executive Magistrate, Akola on 27/11/2011 in presence of Doctors indicating that assailants namely Ganesh Mehare, Ganesh Raut and third unknown person had assaulted the first informant on 25/11/2011 in the morning after he started from his house by motorcycle at 5:15 a.m. and was going towards the Railway Station. It was further indicated in the statement that after the incident, the assailants had ran away from the scene of crime. The previous enmity was also disclosed in the said statement. It was specifically stated by the first informant that those assailants had attempted to murder by assaulting him. In the course of investigation also, the statements of some witnesses came to be recorded, which included statements of eye witnesses.