ARJUN GOPAL MAHARANA Vs. STATE OF MAHARASHTRA

JUDGEMENT

(1.) Heard rival arguments on this Criminal Appeal preferred by the appellant/orig accused challenging the judgment and order dated 16th June, 2005 passed by the 3rd Ad hoc Additional Sessions Judge, Thane in Sessions Case No. 24 of 2005.

(2.) BY the impugned judgment and order, appellant / orig. accused was convicted for the offence punishable under section 302 of IPC and was sentenced to suffer imprisonment for life and to pay fine of Rs. 1000/-, in default to undergo SI for three months. By the same judgment and order, appellant/orig. accused was acquitted of the offence punishable under section 307 of IPC. Admittedly, the State had not preferred appeal against the acquittal.

(3.) ON the day of the incident i.e. on 5.7.2004, at night PW1 Mohan was at his home watching some TV programme. After some time, he went out to answer the natures call and was proceeding towards one building. That time, he heard some shouts as well as hue and cry. He enquired as to what was happening. He saw one injured person i.e. complainant Ramcharan coming from one room and he was being assaulted by the present appellant/accused with the help of one iron bar. Said PW1 Mohan was knowing the appellant/accused being labourer on the building construction work in that area. PW1 Mohan caught hold of the appellant/accused and shouted for help and called his friends Vijay and Daulat. They came to the spot. Thereafter the owner of the building one Sunil (PW2) was also called on the spot. Enquiries were made with the appellant/accused as to why he was assaulting the complainant. On this, the appellant/ accused replied that said injured person had not repaid the money and, therefore, he had assaulted the injured. After some time, many persons gathered there. They entered inside the room and found one person lying on the floor. He was deceased Shamim. Said deceased had severe bleeding injuries on his head and froth was coming from his mouth. Telephonic message was sent to the Police Station. Police persons arrived on the spot. The injured was taken to hospital. Another person who was found inside the room was declared dead on admission in the hospital. Appellant/accused was put under arrest. Clothes, which he was wearing, were taken charge of. The complain-ant-Ramcharan was initially assaulted by the appellant/accused and this assault was witnessed by PW1. Complainant lodged First Information Report. However, at this juncture it must be mentioned that during the trial of the matter, said first informant was not traced out though processes were issued to require his presence for giving evidence. As such the entire matter was heard without there being any evidence of the complainant. Probably this fact weighed much with the trial Court to doubt that the said complainant was assaulted by the appellant/accused with the iron rod, and consequently the appellant/accused was acquitted of the charge punishable under section 307 of IPC regarding assault on the complainant Ramcharan.