MANIK Vs. THE STATE OF MAHARASHTRA

JUDGEMENT

(1.) Being aggrieved by the Judgment and Order dated 21st February, 2003, passed by learned First Ad Hoc Additional Sessions Judge, Bhandara, in Sessions Trial No. 23 of 1999, by which the learned Trial Judge convicted the appellant Accused No.1 of the offence punishable under Section 307, Indian Penal Code, and sentenced him to undergo Rigorous Imprisonment for three years and to pay a fine of Rs.3,000/-, in default, further Rigorous Imprisonment for nine months, the present appeal was filed by him.

(2.) In support of the appeal, learned counsel for the appellant submitted that in the hospital, the police had recorded the statement of the complainant/victim Gajanan Hatwar [PW 3], who had not named any of the accused persons, much less the present appellant as the assailant. On the contrary, he named a stranger - a tall, well-built person assaulting him by means of a sword stick twice and then running away. The learned counsel then submitted that admittedly the victim Gajanan [PW 3] and the present appellant and the other accused persons are closely related to each other and, therefore, it is difficult to believe that he would not name them in the first statement before police, except saying that some stranger had assaulted by means of a sword stick. He then submitted that the evidence of Gajanan [PW 3] has been shattered in the cross-examination, inasmuch as assault by the appellant and others is an omission amounting to contradiction duly proved from the evidence of Investigating Officers Nilkanth Waghmare [PW 7] and Mahendradas Deomurar [PW 9]. That is the material omission in respect of the actual assault by the accused persons and the Trial Judge, however, termed it as a minor omission. He submitted that the omission in respect of the actual assault cannot be said to be a minor omission and that is a fact which is corroborated by the statement [Exh.32], which was first in point of time. He then submitted that there is no recovery or discovery of the weapon from any of the accused persons, including the appellant, nor any blood-stained clothes and, therefore, it was too risky for the learned Trial Judge to record the conviction against the appellant. He, therefore, prayed for reversal of the judgment of conviction.

(3.) Per contra, Mrs. Joshi, learned APP, supported the impugned judgment and order of conviction, and submitted that though in the First Information Report, the names of the assailants, i.e., the appellant and other accused persons were not mentioned, nevertheless in the supplementary statements, the names were mentioned and, therefore, the prosecution proved its case beyond any doubt. She further submitted that there is also evidence of Rajesh Hatwar [PW 4], Hiraman Hatwar [PW 5] and Mahesh Charde [PW 8] which corroborated the testimony of the complainant victim. She, therefore, submitted that the appeal deserves to be dismissed.