JAGDISH MADHUKAR SAHARE Vs. STATE OF MAHARASHTRA

JUDGEMENT

(1.) This revision under section 401 read with section 397 of the Code of Criminal Procedure Code is directed against the judgment and order passed by Joint District Judge & Additional Sessions Judge, Nagpur in Criminal Appeal No. 1/2003 dated-2.2.2005 by which she dismissed the appeal against judgment of conviction and sentence of the revision applicants in Sessions Trial No. 108/1999 decided by 7th Ad-hoc Assistant Sessions Judge, Nagpur on28.11.2002 by which the revision applicants were found guilty of the offence punishable under section 325 read with section 34 of the Indian Penal Code and were sentenced to suffer R. I. for 2 years and to pay fine of Rs. 3,000/- each, in default to suffer R. I. for six months.

(2.) Brief facts leading to the filing of the revision application, are thus. Revision applicants were prosecuted for the offences punishable under section s 307, 353, 332, 333 read with section 34 of the Indian Penal Code in the court of the 7th Ad-hoc Assistant Sessions Judge, Nagpur. The allegations levelled against them were that they in furtherance of their common intention, caused injuries to P. W.1 Sanjay Jasutkar a Police Constable on30.6.1991 at about11. 00 p. m. , when he along with P.W.4 P. C. Bandu Thakre had gone to raid the house of one Madhukar Sahare, who was residing at Nagardhan, on the information that he was going to bring liquor in his house in illegal manner. It is not necessary to go into the details of the prosecution case, considering the nature of the final order that need to be passed in the present revision application. Suffice it say that it is alleged that both these revision applicants, when saw P. W.1 P. C. Sanjay Jasutkar coming to the house, they inflicted blows by the blade of Bhala [spear] and sticks. It is alleged that the revision applicant - Jagdish had caused injuries on his stomach, chest and right hand arm by the blade of Bhala; whereas revision applicant no.2 had caused injuries by stick. Thereafter, somehow he ran away from the spot and later on he went to his house. He narrated the incident to Police Constable Thakre and one Dhurve. He was taken to the hospital, thereafter report was lodged to the police station and after due investigation the revision applicants were charge-sheeted.

(3.) Learned counsel for the revision applicants Shri. Ravlani submitted that the charge against revision petitioner was for the offence punishable under section 307 read with section 34 of the Indian Penal Code. No charge was framed for other offences against them. According to him, the main prosecution witnesses namely P. W.1 Sanjay and P.W.4 Bandu who are Police Constables and were accompanying each other at the relevant time for raid, have given divergent versions regarding the incident. In fact P.W.4 Bandu did not try to save P. W.1 Sanjay and his version is not reliable. He has also submitted that at the relevant time it was dark and therefore, identification of the revision applicants/accused in the court is unreliable, inasmuch as there was no identification parade held, during the investigation. According to him, the prosecution witnesses were not knowing these accused persons and therefore, sans, identification parade, their identification in the court was not trustworthy. According to him, as these police witnesses were not on duties, nor were shown so in the police station registers, offence under section s 307, 353, 332, 333 read with section 34 of the Indian Penal Code is not warranted. He contended to that the judgment of the trial Judge and the appellate court, are not sustainable at law. Apart from this he has mainly contended that the matter in the appellate court was heard on11.11.2004. The vakalatnama of the learned counsel for the revision applicant Shri. Ravlani was filed on17.9.2004. In fact their earlier counsel Shri. Ghodeswar expired on15.9.2004, prior to hearing of the matter. Still, judgment of the learned appellate Judge refers to Shri. Ghodeswar Advocate as a counsel appearing for the appellants which was totally incorrect and depicting her non application of mind to the case. It is seriously contended by him that the judgment was delivered by the learned appellate Judge on2.2.2005, i. e. after considerable time of more than 3 months, after hearing the arguments. According to him, no notes of arguments were taken by the learned appellate Judge and the judgment was delivered. According to him, his contentions are not at all considered by the learned appellate Judge and therefore, judgment impugned in this revision is totally incorrect, and unjust at law and therefore, it is liable to be set aside.