MAULI Vs. THE STATE OF MAHARASHTRA

JUDGEMENT

(1.) HEARD learned Counsel for respective parties.

(2.) THE applicant herein happens to be the original complainant in C.R. No. 80 of 1997, registered at Parli -Vaijanath Police Station (Rural), Dist. Beed, for offences punishable under Sections 435, 324, 325 read with 34 of the Indian Penal Code.

(3.) LEARNED Counsel for the applicants submits that, the learned Magistrate has not appreciated the evidence in its proper perspective. The learned Counsel for the applicant has drawn attention of this Court to the injury certificates of the witness. Upon perusal of the injury certificates, it appears that Sanjeevan had sustained as many as seven injuries. The injury No. 1 was a grievous injury whereas; the other injuries were simple in nature. Victim Gangabai had also sustained an incised wound on her Head which was shown as a grievous injury. Tukaram had sustained a contused lacerated wound on his head which was also shown as simple injury. The said injury certificates are at Exh. 53, 54 and 55 of the proceedings. The prosecution has examined Dr. Madhav Mundhe to prove the said injury certificates. He has proved the said injury certificates. It is elicited in the cross -examination that the contusions and abrasions are possible by fall of a person on rough substance with sufficient force. That, the persons were referred by Parli Police Station. Dr Mundhe has evaded to answer the time of examination of the victims. He had not brought along with him the reference letter sent by the police. He has asserted that he had taken entries about the examination of the said persons in the M.L.C. register however, he could not produce the same before the Court. He had sought time to produce the M.L.C. register. He has expressed his inability to comment upon the history given by the injured at the time of admission. He has admitted that the certificates issued at Exh. 53, 54 and 55 are in his own handwriting. He was examined on 11th February, 2003 i.e. practically after six years of the alleged incident and, therefore, he has rightly submitted that his memory does not permit him to depose before the Court in the absence of the M.L.C. register. The learned Magistrate had considered this aspect and had arrived at a conclusion that in the absence of the original M.L.C. register, it cannot be said that the injuries were proved. The learned Magistrate has considered that the victims had specifically stated before the Court that at the time when the fodder was set on fire several villagers had assembled on the spot however, none of them had made any efforts to extinguish the fire neither intervened to help the complainant. The learned Magistrate has drawn an inference of the very fact that, none of the villagers or the people residing in the neighborhood had seen the fodder being set on fire and not attempting to distinguish the fire it cannot be said that the alleged incident had taken place as narrated by the complainant. The learned Magistrate has considered the variance and the inconsistencies in the deposition of the three material witnesses, who are injured witnesses. The learned Magistrate has considered that the ocular evidence has not been corroborated by the medical evidence. In fact, the learned Counsel for the applicant rightly submits that in the eventuality that there is variance between the ocular evidence and the medical evidence, normally the ocular evidence would prevail over the medical evidence. Learned Counsel for the applicant also rightly submits that in the present case the witnesses are not just eye -witnesses but, they are injured witnesses. That, they could identify the accused since they were acquainted with the accused. The identity of the accused was disclosed in the First Information Report itself and, therefore, according to the learned Counsel, the sterling testimony of the prosecution witnesses ought not to have been brushed aside only because the Medical Officer could not place on record the M.L.C. register.