1 APEAL 168 OF 1997 vks IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NO. 168 OF 1997 Dhruva @ Satish Moreshwar, Mhatre, age: 25years. resident of Koproli, Tal. Uran District: Raigad. .. Appellant -versus The State of Maharashtra .. Respondent. Mr. Ganesh Gole, Advocate, for the Appellant Mr. Y. M. Nakhawa, APP for the Respondent State. CORAM: R.C. CHAVAN, J. DATED: 25rd February, 2011 Oral Judgment 1. This appeal is directed against the conviction of the appellant, by the learned II nd Additional Sessions Judge, Raigad-Alibag for the offence punishable under Section 324 of the Indian Penal Code and the sentence to suffer R.I. for three years and to pay a fine of Rs.200/- in default to suffer R.I. for two months. 2. The facts which are material for deciding this appeal are as under:- On 18.10.1991, a procession of immersion of Goddess ‘Durga’ was to be taken out at village Koproli, within the jurisdiction of Police Station, Uran. Constables Pramod Langi and Dada Panchgane, had been deputed for Bandobast. 2 APEAL 168 OF 1997 The villagers were to take out procession in which 2 to 3 idols of Goddess Durga, were to be carried for immersion. Participants in the procession were dancing. Appellant and co-accused Raju were also present. One Rajaram Gajanan Mhatre at whose house, idol of Durga was installed came with sword in his hand. Nandkumar and Santosh @ Girish were dancing in the procession. Rajaram started inflicting blows on Nandkumar by means of sword. When constable Pramod Langi tried to restrain Rajaram, he was injured, but he managed to snatch the sword from the hands of Rajaram. The appellant Dhruv was holding beer bottle in his hand and he had allegedly hit on the head of Santosh @ Girish with bottle. The appellant and co accused Raja @ Raju Waman Mhatre were alleged to have injured constable Langi and Nandkumar Patil. The injured were taken to Hospital by constable on duty. On a report by constable Pramod Langi, offence was registered, and investigation commenced. In the course of investigation, police performed panchnama of spot, seized the incriminating articles, recorded statement of witnesses, got victim to be medically examined, sent incriminating articles to Forensic Science Laboratory and after completion of investigation, chargesheeted the appellant and co accused in the Court of Judicial Magistrate First Class Uran, who committed the case, the Court of Sessions at Alibag. 3. Learned Additional Sessions Judge, charged the 3 APEAL 168 OF 1997 appellant and co accused Raju for the offences punishable under section 307, 353, 332, 326 read with 34 of the Indian Penal Code for attempting to commit murder of Santosh Yashwant Mhatre and Nandkumar Anant Patil, and for voluntarily causing hurt to a public servant with the intent to prevent or to deter him from discharging his duties and voluntarily causing hurt to Nandkumar Patil, Santosh Yeshwant Mhatre. Both the accused pleaded not guilty to the charge and hence they were put on trial at which the prosecution examined in all 11 witnesses in its attempt to prove them guilty. 4. After considering the evidence tendered in the light of defence of denial, learned Additional Sessions Judge, acquitted both the accused for the offences punishable under section 307, 353, 332 and 326 read with 34 of the Indian Penal Code, but convicted the appellant Dhruv for the offence punishable under section 324 of the Indian Penal Code for causing hurt to Girish @ Santosh and sentenced him as mentioned herein above. Aggrieved thereby the appellant has preferred this appeal. 5. I have heard learned counsel for the appellant and learned Additional Public Prosecutor for the State. With the help of both the learned counsel, I have gone through the record of the trial. Except the evidence of P,.W.1 Pramod Langi, there is absolutely no material against the appellant. 4 APEAL 168 OF 1997 Even the injured person Girish @ Santosh who was examined as P.W.4 was declared hostile and since he did not state that the appellant caused injury to him to by means of beer bottle. Neither P.W.2 Panchgane-police constable who was on duty nor P.W.3 Nandkumar who was another injured person state about the appellant’s complicity in the incident. Another eye witnesses Manohar Mhatre who was examined as P.W.6. does not state about assault by appellant. P.W. 5 Vishvanath Patil, P.W.7, Chandrakant Mhatre and P.W.8, Sunil Bhoir, have been examined to prove steps taken in investigation. P.W.9 -PSI Rane and P.W.11 - PSI Govind Pardeshi, conducted investigation. P.W.10- Dr. Narayankar, examined the injured person. 6. P.W.1 Police Constable Langi stated that the appellant was also standing at the place where scuffle took place. Rajaram had first hit Nandkumar with sword. Witness state that appellant Dhruv was holding bottle in his hand and he hit the same on the head of Santosh. In cross examination he repeated that appellant had hit Santosh with bottle. No other witnesses state about any such assault by the appellant on the victim. P.W. 10 Dr. Narayankar, who had examined victim Girish @ Santosh stated that he had observed 7 injuries on the person of Girish. There is one injury on the head which is Contused Lacerated Wound on the left parietal region 2” x 1 mm deep. Dr. Narayankar, stated in his cross examination 5 APEAL 168 OF 1997 that the base of beer bottle is hard and blunt. Injury described by him is, however, stated to have been caused by hard and sharp object and thus could not have been caused by the beer bottle which was allegedly in the hand of appellant. 7. Learned counsel for the appellant, is therefore right in submitting that on the face of impossibility of the such injury being caused by bottle which the appellant was holding and particularly in the face of the fact that the victim himself had refused to state appellant had caused any such injury to the victim, learned Judge should not have relied the sole testimony of P.W.1 Pramod Langi, who had also stated that Chilly Powder had entered his eyes. Therefore, his hazy impression could not have been allowed to form basis of conviction of the appellant. 8. In view of the above, the appeal is allowed. The conviction of the appellant for the offence punishable under Section 324 of the Indian Penal Code and sentence to suffer R.I. for three years and to pay fine of Rs.200/-,imposed upon by the learned Additional Sessions Judge-Raigad, Alibag is hereby quashed and set aside. The appellant is acquitted of the same. Fine if paid be refunded to the appellant. (R. C. CHAVAN, J.)