1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH, NAGPUR CRIMINAL APPLICATION (APL) NO. 29 OF 2011 MANIK GUKUL GEDAM ..VERSUS.. ASHOK RAMCHANDRA DURGAMWAR AND 2 OTHERS Office Notes, Office Memoranda of Coram, Appearances, Courts orders or directions Court’s or Judge’s orders and Registrar’s orders. Mr. S. P. Gadling, Advocate for the applicant. Mr. M. J. Khan, A.P.P. for respondent no.3/State. CORAM : PRASANNA B. VARALE, J. DATED : 24 th AUGUST , 2011 . By this application, the applicant is seeking challenge to the judgment and order passed by the learned Additional Sessions Judge, Pandharkawada (Kelapur), dated 10.11.2010 in Criminal Revision No. 22 of 2007 and the judgment and order passed by the learned Judicial Magistrate, First Class, Wani dated 24.08.2007 in Regular Criminal Case No. 154 of 1994. The applicant further seeks for conducting re-trial. 2. A Regular Criminal Case No. 154 of 1994 was registered on the complaint lodged by the present applicant, alleging that on 23.08.1994, when he was proceeding to Wani from Rajura colliery in one auto rikshaw and when the auto rikshaw came near one Upadhyay lodge, the accused persons came on the spot and started beating the complainant with hockey sticks. The applicant/complainant tried to run away from the spot by entering in one bus proceeding towards Pandharkawada. The accused 2 persons chased the applicant/complainant on a motorcycle and when the applicant/complainant got down from the bus at Ganeshpur phata, the accused persons again beat him by hockey sticks. 3. The learned Judicial Magistrate, First Class, Wani, on considering the evidence, found that the evidence is too short against the accused persons and passed the judgment and order of acquittal dated 24.08.2007. Against the judgment and order of acquittal, the applicant/complainant preferred revision application before the learned Additional Sessions Judge, Pandharkawada. The learned Additional Sessions Judge, Pandharkawada, (Kelapur), by the judgment and order dated 10.11.2010 dismissed the revision. Being aggrieved by the judgments and orders mentioned above, the applicant is before this Court. 4. Heard Mr. S. P. Gadling, the learned counsel for the applicant/complainant and Mr. M. J. Khan, the learned Additional Public Prosecutor for respondent no.3/State. None appeared for the respondent nos.1 and 2/accused. 5. Mr. Gadling, the learned counsel for the applicant submitted that the learned Courts below have not properly appreciated the evidence. He further submitted that neither the Investigating Officer nor the Medical Officer of Government Hospital, Yavatmal was examined and as such sufficient evidence was not brought before the trial Court. The learned counsel for the applicant also submitted that failure to examine these witnesses by the prosecution agency, caused prejudice to 3 the applicant/complainant. He, therefore, prayed for quashing and setting the impugned judgments and orders and also prayed for conducting re-trial. 6. Mr. Khan, the learned Additional Public Prosecutor has supported the impugned judgments. 7. Perused the impugned judgments. It appears from the judgment passed by the Trial Court that the learned J.M.F.C., Wani on consideration of the evidence, arrived at a conclusion that the so called eye-witnesses do not support the case of the complainant. It further appears that the applicant/complainant has nowhere referred these witnesses as eye-witnesses of the incident. The Medical Officer Dr. Dhawale, who was attached to the Rural Hospital, Wani at the relevant time, in his testimony stated that the injuries caused to the complainant/applicant might have been caused by the stick. The Revisional Court has dealt with the evidence in detail. It is observed by the Revisional Court that P.W.1 Bharat Singh and P.W.2 Sattu, though claim to be the eye-witnesses, turned hostile and have not supported the prosecution case. The Revisional Court also found that Dr. Dhawale, who had issued the Medical Certificate and since, the complainant, immediately after the incident, was referred to Dr. Dhawale for examination, the evidence of Dr. Dhawale assumes much importance. The Revisional Court further found that in the cross-examination, Dr. Dhawale was unable to tell whether the weapon used in the crime was sent to him for examination or not. Dr. Dhawale admitted that injury nos.2 and 8 may be caused if someone fell on hard surface from height or if someone fell from 4 running vehicle. Dr. Dhawale also admitted that injury no.6 is possible if toe dashes with a stone and other injury mentioned in the medical certificate Exh.77 are possible if someone fell on hard surface. 8. In view of this evidence, I find no force in the submission of the learned counsel for the applicant/complainant that the Medical Officer was not examined. Though, the learned counsel for the applicant tried to submit that the applicant/complainant was referred to the Government Hospital at Yavatmal for treatment, but the Medical Officer from Government Hospital, Yavatmal was not examined, I see no merit in the submission of the learned counsel for the applicant for the reason that the Medical Officer Dr. Dhawale was examined, who was attached to the Rural Hospital, Wani at the relevant time and the applicant was examined by Dr. Dhawale immediately after the incident and whose evidence was properly appreciated by both the Courts below. It also appears from the impugned judgments that the prosecution has taken several chances for adducing the evidence of the investigating officer, but could not secure the presence of the investigating officer. 9. The learned counsel for the applicant placed reliance on the unreported judgment of this Court (Coram : S. B. Deshmukh, J.) in Criminal Revision Application No.263 of 2006 (Aurangabad Bench). It appears from the perusal of the judgment that it is not applicable to the case in hand as the facts in the unreported judgment are totally different than the facts of the present case. 5 10. On hearing the learned counsel for the parties and considering the impugned judgments and orders, I am of the opinion that the application is devoid of merit. No case is made out for invoking powers under Section 482 of the Criminal Procedure Code and the application deserves to be rejected. 11. In the result, the criminal application is rejected. JUDGE Diwale