RAVI Vs. STATE OF MAHARASHTRA

JUDGEMENT

(1.) The appellants have been convicted for the offences punishable under sections 307 read with 34 of the Indian Penal Code by the learned Additional Sessions Judge, Amravati and are sentenced to suffer imprisonment for a period of three years and to pay a fine of Rs. 3,000/- in default, suffer R.I. for three months. The prosecution story in brief before the trial Court was that appellant Nos. 1 and 3 were drinking liquor at the house of appellant No. 2 - Smt. Sushila Thorat on 17th February 2011 at about 9.00 p.m. and they were shouting loudly. PW 8-Dnyaneshwar went to the house of appellant No. 2 and tried to impress upon the appellants that they should not shout. It is the case of the prosecution that the appellant No. 3-Bhagwan suddenly assaulted PW 8 by means of a stick and the appellant No. 1-Ravi assaulted him by means of an iron bar. The appellant No. 2-Smt. Sushila Thorat had also assaulted PW 8 by means of a stick. PW 5-Waman Gade and other persons of the locality came to the house of appellant No. 2. All the appellants ran away from the spot. PW 8-Dnyaneshwar was found lying in the courtyard of the appellant No. 2 with bleeding injury on his nose. He was taken to the hospital at Amravati. PW 8 was thereafter shifted to Yadgire Hospital, Amravati and was admitted for further treatment. The complainant PW 5-Waman lodged the report about the incident at Shirkhed Police Station. F.I.R. No. 16/2011 was registered against the appellants for the offences punishable under Section 307 read with 34 of the I.P.C. After completion of investigation, charge-sheet was filed in the Court of learned Magistrate and the case was committed to the court of Sessions.

(2.) Charge u/s. 307 read with 34 of the I.P.C. was framed against the appellants. All the appellants pleaded not guilty and claimed to be tried. The prosecution had examined in all 11 witnesses in support of its case. PW 1-Dhanraj is the Panch witness, in whose presence blood samples of the appellants were collected and clothes of the appellant No. 3-Bhagwan were seized by the police. PW 2-Bandu Raut is also a Panch witness but he has not supported the prosecution case. PW 3 - Raosaheb is also one of the Panch witnesses, but has not supported the prosecution case. PW 4-Pratibha, PW 5-Waman Gade, PW 6-Padma Gade and PW 7-Pradip Khadse, are the residents of the locality where the incident had occurred. PW 4-Pratibha had not witnessed the incident. She is the wife of the injured. She had reached the spot of the incident after the incident. Her husband was lying in the courtyard of the appellant No. 2. The injured was taken to a hospital at Amravati and was admitted in Irvin Hospital and thereafter he was taken to the Hospital of Dr. Yadgire. PW 5-Waman had also reached the spot after there was commotion. He had not seen the incident of alleged assault PW 6-Padma had seen the injured PW 8-Dnyaneshwar going towards the house of Smt. Sushila. She had also heard shouts. However she had not seen as to who had assaulted whom. She had seen PW 8-Dnyaneshwar lying in the courtyard of appellant No. 2. PW 7-Pradip had also given evidence regarding the alleged quarrel near the house of appellant No. 2. He had seen PW 8 lying in the courtyard of the appellant No. 2 with bleeding injuries. It is, thus clear that none of these witnesses had seen the actual incident of assault They had seen PW 8 lying in the courtyard of the appellant No. 2 in an injured condition. What is interesting to note in the present case where the appellants have been convicted for the alleged assault on PW 8-Dnyaneshwar is that the PW 8 has not supported the prosecution case. He has stated that he had sustained head injury due to assault on the part of somebody to whom he did not know. This incident had occurred when he was passing from the road. He further stated that he became unconscious after sustaining the injuries. He was cross-examined by learned Asst. P.P., but denied all the suggestions made to him. PW 9 - Baburao is the Investigating Officer and PW 10-Dr. Rajesh Ingle is the Medical Officer. In view of the evidence of the witnesses who reached the spot and the evidence of PW 8 injured himself, I do not think it is necessary to discuss the evidence of Medical Officer and the Investigating Officer. PW 8-Dnyaneshwar who was seriously injured in the alleged incident of assault, had turned hostile and other witnesses had not seen the incident of assault. Despite that, the learned trial Court has convicted the appellants for the offence punishable u/ss. 307 r/w. 34 of the I.P.C. This conviction is mainly based on the admissions given by PW 7-Pradip in the cross-examination by the learned Asst. P.P. PW 7 has admitted in his cross-examination that he had seen the appellant No. 2 - assaulting PW 8. He had also seen the appellant No. 3 assaulting PW 8 by means of a wooden plank. However, the learned trial Court has ignored the cross-examination of this witness by the learned Advocate for the accused at paragraph 7 in which he had admitted that when he reached the house of appellant No. 2, he had seen PW 8 lying there in an injured state. People had surrounded the house of appellant No. 2. He has also stated that he along with other persons sent the injured PW 8 to Amravati hospital. As such, this witness was not firm in his evidence. He has given evidence against the appellants in examination-in-chief and in favour of the prosecution, in cross-examination by the learned Asst. P.P. and again in favour of the appellants in cross-examination on behalf of the learned Advocate for the appellants No. 2 and 3. I am of the view that the learned trial Court should not have believed the evidence of such a witness. This witness was not though fully unreliable but he was not fully reliable also. The conviction based on such a witness without any other corroboration, in my opinion, is risky and the learned trial Court should have acquitted the appellants. Hence, I pass the following order: