1` IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH, NAGPUR Criminal APPA No. 494/2011 State of Maharashtra, through Police Station Officer, Benoda Police Station, Tq. Warud, District: Amravati .vs. Digambar Pralhadrao Bhagat and others. ----------------------------------------------------------------------------------- Notes, Office Memoranda of Coram, appearances, Court's orders Court's or Judge's or directions and Registrar's orders. Orders. Mr. T.A.Mirza, APP for appellant. CORAM : P.V.HARDAS & S.B.DESHMUKH,JJ DATE : 17.08.2011 ORAL ORDER (PER S.B.DESHMUKH,J) We have heard the learned APP for the appellant – State. 2. This is an application for grant of leave to appeal under Section 378 (3) of the Code of Criminal Procedure filed on behalf of the appellant -State of Maharashtra. The respondents in this criminal application undisputedly were accused in Sessions Trial Case No. 163/09. The respondents were tried for the offences punishable under sections 147, 148, 302 read 2` with section 149 of the Indian Penal Code and under section 135 of the Bombay Police Act. The First Information Report was lodged by Kantabai wife of deceased Ramdas on August 7, 2009. It was registered as FIR No. 38/09 at Police Station, Benoda. This FIR No. 38/09 (Exh. 25) was registered for the offences punishable under sections 147, 148, 302 read with 149 of the Indian Penal Code and under section 135 of the Bombay Police Act. According to informant Kantabai, occurrence took place on 7.8.2009 at about 5.30 p.m. when along with her deceased husband Ramdas, she was proceeding to their agricultural land. Since the road was rough, it was not possible for the couple to pass through the said road on motor-cycle. Ramdas, therefore, was alone riding the motor-cycle. Informant Kantabai was following the motor bike by walk. On way, respondents, who were coming from their agricultural land, accosted and abused Ramdas, deceased husband of Kantabai. They were asking Ramdas as to why Ramdas removed grass from the common bund of agricultural land owned by them and Kantabai. 3` Respondent No.2 Pralhad was armed with wooden log. He dealt blows thereof on the head of Ramdas. Ramdas fell on the ground. Respondent no.1 Digambar, who was carrying bamboo stick, also assaulted Ramdas. Respondent no.3 Chetan, holding vet stick, also started giving blows on the body of Ramdas. Respondent no.4 Pushpa, respondent no. 5 Savita and respondent no. 6 Nirmalabai were present at the scene of occurrence. According to informant Kantabai, respondent nos. 4,5 and 6 were provoking and instigating respondent nos. 1 to 3, in their assault on the person of Ramdas. Not only this, respondents Pushpa, Savita and Nirmalabai rushed towards Kantabai with an intention to assault her. However, Kantabai, ran towards her husband Ramdas, who had sustained head injury. There was blood oozing from the injuries sustained by Ramdas. Ramdas had sustained severe injuries to his eyes, ear and teeth. After some time P,W.2 Haribhau, P.W.3. Kishor and P.W.4 Sahebrao came to the scene of occurrence. Informant Kantabai requested P.W.3 Kishor to get an auto-rickshaw to rush her husband Ramdas to the 4` hospital. With the help of P.W.3 Kishor, P.W.2 Haribahu and others, Ramdas was put in auto-ricksha and rushed to the Primary Health Centre, Warud. The Medical Officer present at Warud treated Ramdas. However, considering the critical condition of Ramdas, Doctor advised shifting of Ramdas to Nagpur for further treatment. Informant Kantabai engaged an ambulance. Kantabai along with Ramdas, in an ambulance, were travelling to Nagpur. On way, however, Ramdas breathed last. 3. After investigation was carried out, the respondents- accused persons were arrested under the panchanama. The post mortem was performed on the dead body of Ramdas at Primary Health Centre, Warud itself. On completion of the investigation, charge sheet was submitted to the Court of learned Judicial Magistrate, First Class, at Warud. The learned Judicial Magistrate, First Class, Warud committed the case to the Court of Sessions for trial by an order dated October 27, 2009. 5` 4. The leaned Additional Sessions Judge framed the charge (Exh. 14) on 11.8.2009 against the respondents. Charge framed was read over and explained to the respondents- accused persons to which they pleaded not guilty and claimed to be tried. Total denial was the defence of the accused persons revealed from the cross examination and statement under section 313 of the Code of Criminal Procedure. 5. The learned Additional Sessions Judge, Amravati after recording evidence, acquitted the respondents for committing offences punishable under sections 147,148, 302 r/w 149 of the Indian Penal Code. 6. The acquittal of the respondents- accused is, thus, assailed by the State, by filing appeal with the present criminal application seeking leave of this Court to appeal. 7. The Assistant Public Prosecutor, submitted that the occurrence has been witnessed by Kantabai 6` wife of deceased Ramdas. According to him, post- mortem report has been proved in the evidence of P.W.5 Doctor Ande. During the course of the post- mortem, P.W.5 Doctor Ande found injuries which have been pointed out from the para 7 of the Judgment by the learned Assistant Public Prosecutor. According to him, the weapons namely 'Stick' (Article D), another stick (Article E) and two more sticks; one of them having iron blade, were seized by the Investigating Officer. The weapons seized were sent to the Chemical Analyser. While sending the weapons for examination, due care and caution was taken by the Investigating Officer. In other words, the weapons were sealed under the panchanama of the panch witnesses and the investigating officer. The expert, on receipt of the letter, examined the weapons and furnished opinion in writing. According to the learned APP, the weapons have been identified by the witnesses examined on behalf of the prosecution to contend that these were the weapons used by the respondents- accused persons for committing offence. The learned APP submitted that 7` the evidence of Kantabai, is trustworthy. Her presence at the spot along with her husband Ramdas, was natural. Her evidence ought to have been accepted by the learned Judge and on appreciation of her evidence, the respondents ought to have been convicted for the offence punishable under section 302 of the Indian Penal Code. 8. We have given due consideration to the submissions of the learned Assistant Public Prosecutor for the appellant. 9. It is trite to say that quality of the evidence is material and not the number of witnesses examined on behalf of the prosecution to prove the charge (as framed against the accused persons). Even though it is a case of a solitary witness, according to the learned APP, the offence alleged has been established. The trial court has not appropriately considered and appreciated the evidence of Kantabai. At this stage, it is appropriate to refer a Judgment of the Hon'ble 8` Supreme Court in the matter of Shivaji Sahebrao Bobade and another vs. State of Maharashtra (AIR 1973 Supreme Court, 2622), in which it is held by the Hon'ble Supreme Court that even if the case against the accused hangs on the evidence of a single eye witness, it may be enough to sustain the conviction given on sterling testimony of a competent, honest man, although as a rule of prudence, courts call for corroboration. The learned trial Judge, while appreciating the evidence of P.W.1 Kantabai, has reached to the conclusion that she is the prime witness of the prosecution and an eye witness to the incident. The learned trial Judge, on appreciation of the material and circumstances brought on record, has observed that Kantabai herself and Sahebrao, were in the auto rickshaw when Ramdas was taken to the Hospital at Warud. They travelled about half an hour and during this travel, Kantabai did not disclose either to Sahebrao or auto-rickshaw driver the names of the assailants. When she comes to Doctor at Primary Health Center, she did not narrate or disclose to doctor as to how her 9` husband had sustained injuries. She did not disclose the incident even to prosecution witness Kishor and Haribhau, who reached to the spot of occurrence immediately after the occurrence. The learned trial Judge also observed that when Kantabai was advised to shift Ramdas to Nagpur for treatment and was travelling in an ambulance, was accompanied by Mr. Thakre and even during that travel also, she did not narrate how the injuries were caused to her husband. The learned trial Judge opined that Kantabai though claimed to have made hue and cry and though people were gathered on the spot, she did not disclose the names of the accused persons to them. The trial Judge, ultimately disbelieved the evidence of the sole eye witness Kantabai and acquitted the respondents. 10. We have given our anxious consideration to the submissions made by the learned APP for the appellant. We have also considered the Judgment of the learned trial Judge. In our view, the view taken by the learned trial Judge is a possible view based on the 10` material brought on record by the prosecution. No case for interference, in our opinion, is established. Criminal application stands dismissed. Leave refused. JUDGE JUDGE patle