.(1). IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL REVISION APPLICATION NO.6 OF 2006 1. Amit @ Chintu Sonba Jadhav, Age : 22 years, Occ.Student, 2. Ajay Sonba Jadhav, Age : 26 years, Occ.Student, Both R/o. S.No.56, Balajinagar, Vadgaon Sheri, Pune. ..APPLICANTS. [Orig.Accused Nos.1 & 2] -Versus- The State of Maharashtra. ..RESPONDENT. .... Mr.B.R.Patil, Advocate a/w. Mr.Ujwal Agandsurve, Advocate for the applicants. Mr.V.B.Konde-Deshmukh, APP, for the State. .... CORAM : SMT.V.K.TAHILRAMANI,J. CORAM : SMT.V.K.TAHILRAMANI,J. CORAM : SMT.V.K.TAHILRAMANI,J. DATED : 21st November, 2008. DATED : 21st November, 2008. DATED : 21st November, 2008. ORAL JUDGMENT : ORAL JUDGMENT : ORAL JUDGMENT : 1. Heard the learned Advocate for the applicants - orig.accused Nos.1 & 2 and the learned APP for the State. 2. By judgment and order dated 10.10.2003 the learned J.M.F.C., Court No.5, Pune convicted the applicants along with orig.accused No.3 - Vijay Shelke in R.C.C. No.269 of 2001. By the said judgment and order, the applicants came to be convicted under Sections 452, 326 and 324 read .(2). with 34 of Indian Penal Code. 3. Being aggrieved thereby, all the three accused preferred Criminal Appeal No.294 of 2003. By judgment and order dated 4.1.2006 the learned Additional Sessions Judge, Pune acquitted original accused No.3- Vijay Shelke of all the offences. However, the conviction imposed on the applicants came to be confirmed. Hence, this Revision Application is preferred. 4. PW-1 Chandrakant Dhombe is the father of PW-2 Mangesh. PW-2 Mangesh is the complainant and injured witness in the present case. So also as per the prosecution case PW-3 Ajinkya who is the cousin brother of PW-2 Mangesh is also an injured witness. 5. The prosecution case is that on 2.5.2001 there was quarrel between accused No.1 Amit and Galande who is a friend of PW-2 Mangesh. PW-2 Mangesh pacified the said quarrel. It is further the prosecution case that on the next day i.e. on 3.5.2001 at about 8:30 p.m. the accused came to the shop of the complainant and they assaulted him .(3). with swords. When PW-3 Ajinkya intervened in the quarrel, he was also assaulted by the accused persons. Thereafter the injured persons went to Dr.Ravindra (PW-4) who is a private doctor. Dr.Ravindra examined them and issued medical certificates. As per Dr.Ravindra PW-2 Mangesh sustained (i) 1.5 X 1 cms skin deep injury over wrist joint; (ii) 8.8 X 3 cms bone deep injury on fore arm. There was fracture of 1/3rd shaft of ulna. He also found abrasion over right eye of PW-2 Mangesh. On examination of PW-3 Ajinkya Dr.Ravindra found incised wound on right hand thumb and right ring finger and 4 X 2 cms injury on left arm. 6. The learned Advocate for the applicants submitted that the evidence of the eye witness has not been properly considered by both the Courts below. As stated earlier, there are three eye witnesses in the present case i.e. PW-1 Chandrakant who is the father of PW-2 Mangesh, PW-2 Mangesh and PW-3 Ajinkya who is the cousin of PW-2 Mangesh. PW-1 Chandrakant who is an eye witness to the incident has stated that applicant Amit and orig.accused No.3 Vijay Shelke were .(4). holding swords in their hands. PW-1 Chandrakant has categorically stated that at that time Vijay Shelke inflicted blow of sword on the right elbow of his son i.e Mangesh. Due to the said assault, the bones in the elbow of Mangesh were broken. He has further stated that at that time Ajinkya tried to rescue Mangesh but applicant No.2 Ajay inflicted blows of sword on his left hand and right hand thumb, due to which he sustained bleeding injury. However, PW-2 Mangesh has stated that only orig.accused Nos.1 & 2 i.e. Amit and Ajay Jadhav came to the spot, both of them were holding swords in their hands and both of them inflicted blows of sword on his left hand, due to which he sustained fracture. He has submitted that thereafter his cousin Ajinkya intervened. At that time both Ajay and Amit Jadhav inflicted blows of sword on right hand thumb and on left hand of his cousin. Mangesh has not made any reference at all of Vijay Shelke. he has not even stated that Vijay Shelke was present. 7. In the incident, PW-2 Mangesh has sustained fracture of hand and PW-3 Ajinkya has sustained only simple injury. As far as PW-3 Ajinkya is .(5). concerned, he has stated that all the three accused persons i.e. including Vijay Shelke were inflicting blows on Mangesh. Thus, it is seen that PW-3 implicates all accused in assault on Mangesh. However PW-2 Mangesh does not make any mention at all of orig.accused No.3 Vijay Shelke whereas PW-1 has attributed the assault on Mangesh only to Vijay Shelke and not to any of the present applicants. Vijay Shelke has already been acquitted by the learned Sessions Judge. Thus, as far as injury to PW-2 Mangesh is concerned, there is serious discrepancy in the evidence of witnesses. 8. As far as PW-3 Ajinkya is concerned, the injury sustained by him is simple injury. He has attributed the injury only to accused No.2 Ajay. However, PW-2 Mangesh says both accused Ajay and Amit assaulted Ajinkya. Thus, it is seen that there is serious discrepancy in the evidence of witnesses in relation to assault even on Ajinkya. 9. The learned Advocate for the applicants submitted that the learned Sessions Judge has not properly considered the evidence of the three eye .(6). witnesses. He has also not properly considered that prior to the FIR being lodged at Yerwada police station, PW-2 Mangesh has lodged FIR in Ramwadi police chowky and though the said statement is the first information report, it was not produced in Court. The said FIR has been suppressed and a subsequent FIR lodged at Yerawada police station has been brought on record, where the applicants have been falsely implicated. He submitted that in the FIR at Ramwadi these applicants have not been named and the FIR was against unknown persons. In support of this contention, he has pointed out that PW-4 Dr.Ravindra has recorded the history of assault as given by the patient i.e. history of assault by unknown persons. Therefore, according to him this shows that the two injured witnesses were assaulted by unknown persons and hence the evidence of PW-2 & PW-3 is not reliable. He submitted that this fact has not been properly considered by the Courts below. 10. In the present case, three eye witnesses have been examined i.e. PW-1 Chandrakant, PW-2 Mangesh and PW-3 Ajinkya. PW-1 Chandrakant is the .(7). father of PW-2 Mangesh. PW-1 Chandrakant has stated that as soon as the incident took place they proceeded towards Kivalkar Hospital and on the way his son i.e. PW-2 Mangesh lodged complaint at Ramwadi police chowky in respect of the said incident. Then the police recorded his statement in respect of the said incident as per his version. PW-2 Mangesh has also stated that immediately after the incident they rushed towards Ramwadi police chowky and lodged complaint about the incident and thereafter they went to Kivalkar Hospital. The evidence of these witnesses clearly shows that the FIR was lodged at Ramwadi police chowky. However, the said FIR has not come before the Court. This fact creates serious doubt in the mind and it supports the case of the accused that the assault was actually by unknown persons and thereafter they have been falsely involved as an afterthought. This fact has not been properly considered by the Courts below. 11. Dr.Ravindra examined both the injured witnesses. Dr.Ravindra has stated that he recorded the history of the injured and the history given to him by the patient was assault by .(8). unknown persons. From his examination-in-chief it is seen that the history was furnished by the patient. Thus the Doctor who examined both the patients has clearly noted in the case papers that assault was by unknown persons. The learned Sessions Judge has observed that the Doctor has not stated specifically in the cross-examination whether he recorded his history on the information given by PW-2 Mangesh or PW-3 Ajinkya. However, the learned Sessions Judge failed to take note of the fact that in the examination-in-chief itself the doctor has stated that the history was furnished by the patient and as per the history given by the patient he issued medical certificates to the injured persons. The certificate clearly states about assault by unknown persons. Thus, this fact supports the case of the accused that the assault was by unknown persons. 12. It is the prosecution case that two weapons i.e. swords articles A & B came to be recovered at the instance of applicant No.2 Ajay. The learned Advocate for the applicants submitted that the learned Sessions Judge has not properly .(9). considered the evidence of the panch witness. PW-5 Subhash is the panch witness. This witness has stated that the accused told him that he is ready to produce the sword and one other instrument. However, this witness has not been able to identify which accused made the said statement. Moreover, this witness has stated that the police told him at the police station that they wanted to go to Balaji nagar to seize sword. When they went to Balaji nagar, the room was open. The witness has stated that he had no occasion to enter into the said room and the police came out of the room and told that they had seized the sword. In view of these admissions given by the panch witness, I find much merit in the submission that the learned Sessions Judge erred in considering the evidence relating to recovery of sword. The learned Sessions Judge clearly erred in relying on the evidence of recovery of weapon. 13. Looking to the evidence on record, I find much merit in the submission that the evidence on record has not been properly considered by the learned Sessions Judge as well as trial Court. .(10). 14. In the result, Criminal Revision Application is allowed. Rule is made absolute. Both the applicants are acquitted in the said case. The applicants are on bail. Their bail bonds shall stand cancelled. Fine amount, if any, paid by the applicants shall be refunded to them. (SMT.V.K.TAHILRAMANI,J.) (SMT.V.K.TAHILRAMANI,J.) (SMT.V.K.TAHILRAMANI,J.)