THE STATE OF MAHARASHTRA Vs. BAPURAO TUKARAM MANE

JUDGEMENT

(1.) The State is in appeal challenging the judgment and order dated 24-5-2004 rendered by the learned Judicial Magistrate First Class, Umarkhed in Regular Criminal Case 140/1999, by and under which the respondents-accused are acquitted of offence punishable under Section 325 read with Section 34 of the Indian Penal Code ("Act" for short).

(2.) Heard Smt. S.V. Kolhe, learned Additional Public Prosecutor for the appellant-State and Shri K.S. Narwade, learned Counsel for the respondents-accused.

(3.) Smt. S.V. Kolhe, learned Additional Public Prosecutor submits that the judgment and order impugned occasions serious miscarriage of justice. The testimony of the injured witness P.W.2 Bhaurao Mane is held to be unreliable for reasons ex facie untenable. The learned Magistrate failed to appreciate that the testimony of an injured witness stands on a higher pedestal than that of other witnesses. The injured witness is not likely to inculpate the innocent and exculpate the guilty. The learned Magistrate has committed a serious error in disbelieving the testimony of injured P.W.2 on the ground that the Investigating Officer did not record the statements of two persons Amate and Deoba who were referred to in the statement (Exhibit 34) which was recorded as dying declaration of the injured and that the witnesses examined P.W.4 Dadarao and P.W.6 Datta are not likely to have witnessed the incident. It is the submission of the learned Additional Public Prosecutor that the conviction ought to have been based on the sole testimony of the injured, since there is no reasons recorded nor any finding reached by the learned Magistrate that the testimony of the injured P.W.2 is not credit worthy.