EKNATH Vs. STATE OF MAHARASHTRA

JUDGEMENT

(1.) Being aggrieved by the Judgment and Order dated 19th December, 2005, passed by learned Fifth Ad Hoc Additional Sessions Judge, Chandrapur, in Sessions Case No. 51 of 2004, by which the learned Trial Judge convicted the appellant of offence punishable under Section 308 of Indian Penal Code, and sentenced him to suffer Rigorous Imprisonment for three years after acquitting him of the offence punishable under Section 307 of Indian Penal Code, the appellant-accused preferred this appeal before this Court.

(2.) In support of the appeal, learned Adv. Ms. Sapkal [appointed] for the appellant vehemently contended that the impugned Judgment and Order recorded by the Trial Judge is based on the evidence of Suresh Mohurle [PW 4], Anusaya Shankar Mohurle [PW 8] and Vinayak Tulshiram Chaudhary [PW 9]. According to her, Suresh [PW 4] is a highly interested witness, though he is a real brother of the appellant. It is borne out on record and evidence that Suresh [PW 4] 3 was a drunkard and used to harass his family members for extorting money from them for satisfying his vice. She, therefore, submitted that the evidence of Suresh [PW 4] is nothing but an evidence of a fully interested witness for roping the appellant-accused in the crime in question. In so far as the evidence of Anusaya [PW 8] and Vinayak [PW 9] is concerned, she submitted that though they are the neighbourers, they have not supported the prosecution in the cross-examination. Their evidence in further cross-examination at the behest of the prosecutor would not remedy the lacunae brought in their evidence and, therefore, according to her, the evidence of Anusaya [PW 8] and Vinayak [PW 9], independent witnesses, deserves to be discarded; but the Trial Judge did not do so and fell in error.

(3.) Per contra, Mr. Jawade, learned APP, supported the impugned Judgment and Order and submitted that the Trial Judge relied on the single testimony of Suresh [PW 2], but then found corroboration by Anusaya [PW 8] and Vinayak [PW 9] to some extent, though at a later stage in the cross-examination. The inference drawn by the Trial Judge that these two witnesses got time of two months to change their version and, therefore, the possibility of appellant-accused tampering with the evidence could not be ruled out, is reasonable and no fault can be found out with the same. He, therefore, submitted that the evidence of Anusaya [PW 8] and Vinayak [PW 9] cannot be rejected. He submitted that the the Trial Judge also considered the aspect of extending the benefit of Probation of Offenders Act to the appellant, but did not exercise the discretion in his favour. Finally he prayed for dismissal of the appeal.