1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY : . NAGPUR BENCH NAGPUR ( ) .662 2011. CRIMINAL APPLICATION APPA NO OF APPELLANT: The State of Maharashtra Through the , Police Station Officer Nagpurigate , , Police Station Amravati District . Amravati - - VERSUS RESPONDENT: , 53 Babulal Ratiram Rathod aged , / , , . years R o Ratanganj Amravati Tq . and District Amravati . . . , . Mr T A Mirza APP for the appellant : . . . . , . CORAM P V HARDAS AND S B DESHMUKH JJ DATED: 13 2011. th October :( . . ) ORAL ORDER Per S B Deshmukh J 1. . Heard learned APP for the appellant 2. / This is an application filed by the applicant appellant 378 (1) , under Section of the Criminal Procedure Code seeking 7-8-2010 leave to appeal against the Judgment and order dated -3, passed by the Learned Assistant Sessions Judge Amravati in .155/2009. Sessions Trial No 3. .155 2009, In Sessions Trial No of the respondent 307 accused was tried for an offence punishable under Section of . the Indian Penal Code The learned Trial Court after considering the 2 , evidence brought on record reached to a conclusion that the prosecution has failed to prove the offence punishable under 307 Section of the Indian Penal Code or any other lesser offence . , against the applicant Consequent to the finding the learned Trial Court acquitted the accused for the offence punishable under 307 . Section of the Indian Penal Code 4. , , The prosecution case in short was that the occurrence in the case on had took place during the intervening night of 18 February th 2009 19 and February th 2009. It is stated that the respondent accused and injured Shambhunath Phedra were on . . . duty They used to work as Truck driver with one Mr Ashok Jain , On the date of occurrence both were together and after unloading , . the goods returned to Amravati in the night While proceeding at , their respective houses the accused and injured Shambhunath . Phedra consumed liquor Both of them came near the house of the . .1000/- accused The injured Shambhunath demanded Rs from the , , accused and on refusal got annoyed hurled abuses to the accused . , and there was a scuffle The accused went inside his house brought a wooden stick and gave violent blow on the head of . Shambhunath The complainant Ramkali and her brother in law . , came out of the house Suman wife of the accused her son Kailashh and daughter in law Savita also came out and saw that the accused was holding a stick and Shambhunath was lying on the 3 . . ground Blood was oozing from his nostrils The complainant and her brother in law Imrat Kadwe rushed the injured Shambhunath to . Nagpurigate Police Station The Police Officer considering the serious condition of the injured Shambhunath sent him to the , . . . 20-2-2009 General Hospital Amravati On the next day i e on .12. , Ramkali lodged report exh Initially offence punishable under 324 504 Section and of the Indian Penal Code were registered and 307 . . . then offence punishable under Section of the I P C was altered . .24 2009 and added The investigation in the crime No of was set . into motion The Investigating Officer recorded the statements of . the witnesses injured Shambhunath and others The seizure of articles and weapon allegedly used in the commission of the offence were seized and the medical certificate was also collected . from the Hospital The incriminating articles were referred to the . Chemical Analyzer The chargresheet against the accused was , submitted to the Court of the Judicial Magistrate First Class . , , Amravati The learned Judicial Magistrate First Class Amravati committed the case to the Court of Session as the offence 307 punishable under Section of the Indian Penal Code is . exclusively triable by the Court of Session 5. .5 The learned Trial Court framed the charge at Exh 307 under Section of the Indian Penal Code and on trial acquitted . the accused as we have referred to in foregoing paragraphs It is 4 307 this acquittal under Section of the Indian Penal Code is . questioned and leave is sought on behalf of the appellant State 6. Learned APP has made available notes of evidence of . all the witnesses examined during the trial He pointed out to us 7 . that were the witnesses examined during that trial According to , . us the evidence of two witnesses is rather important Injured -1 -2. Shambhunath is PW and Ramkali Shambhunath is PW We shall first consider the evidence of these two witnesses in view of . the submissions of the Learned Additional Public Prosecutor 7. -1 . PW Shambhunath is an injured witness His status as the injured witness is brought to our notice by the learned . Additional Public Prosecutor He also invited our attention in support of his submission that Shambhunath is injured witness -7 . . relying on the evidence of PW Dr Ruprao Yeole It seems from . the evidence of Dr Yeole that the injured Shambhunath was , , admitted to the General Hospital Amravati after the occurrence . 2 . . 20-2-2009. and has been examined by Dr Ruprao at a m on He . found head injury He has prepared bed head ticket and has : noticed the following injuries [ ] i , Contusion swelling and contusion over the right side of 2 . forehead inch x half inch in size [ ] ii , Contusion and swelling over head on left frontal region 2 . x half inch in size 5 [ ] iii 2 Contusion and swelling over the left parietal bone . inch x half inches [ ] iv 2 Contusion and swelling over right parietal bone inch x . half inch in size -7 . It seems from the evidence of PW Dr Ruprao Deoraoji Yeole that . -7 . injured Shambhunath was unconscious PW Dr Yeole advised shifting of injured Shambhunath for examination by Neurosurgeon . . . and for C T Scan investigation These investigations have been . .33. mentioned by Dr Yeole in bed head ticket No According to his , 21-2-2009 1 advise injured Shambhunath was shifted on at about . . . p m by his relative on their own risk This has also been noted and -7 . . recorded by PW Dr Yeole Injured Shambhunath was also . examined by Dr Sawdekar and other technicians and notes were . accordingly taken out in the bed head ticket Injury certificate was -7 . . issued by PW Dr Yeole A letter containing queries was received 28-3-2009 -7 . on by PW Dr Yeole from the police station along with . . .35 - weapon An opinion was given Exh is the opinion given by PW 7 . Dr Yeole that injuries sustained by injured Shambhunath are possible due to blows of the weapon seized and made available for . . inspection to him Article A was the weapon shown to him We -7. have also considered the cross examination of this witness PW 8. -6 Learned APP has also pointed out the evidence of PW . . Dr Subhashchandra Patankar It seems from his evidence that the 6 21-2- injured Shambhunath was admitted in his private hospital on 2009 25-2-2009. and was discharged on Blood sample of the , . injured was referred to Yadgir Super Speciality Hospital Amravati . -6 Report has been received PW opines that injured Shambhunath . sustained grievous injury to the head He sustained fracture to skull ( ). with haemotoma infra cranial bleed He also found that injured 3 Shambhunath was unconscious for days because of grievous . .29 injury He accordingly issued a certificate Exh and discharge .30. Card with notes is at Exh His opinion was also sought by the . police for recording Dying Declaration Injured survived and the Dying Declaration is not the piece of evidence relevant in the case . , , on hand We are therefore not referring other part of the evidence of this witness in detail from the view point of condition of . this patient for recording Dying Declaration It seems that the Dying Declaration has also been recorded in the presence of the . . , witnesses The cross examination is also considered by us Thus -7 the evidence of PW shows that Shambhunath had received injuries which have been recorded by him and he was unconscious from the date and time of admission till discharge of injured . -6 Shambhunath to private Hospital The evidence of PW also shows that the injured Shambhunath was unconscious from the date of admission in his hospital for substantial time for more than 3 . 24-2-2009, days On he found the injured Shambhunath fit for 7 . , recording Dying Declaration and it was recorded In substance from the time of occurrence most of the time Shambhunath was . , , . unconscious His status as injured is therefore stands established 9. -1 . PW Shambhunath was injured during the occurrence . This statement of the learned APP is acceptable to us He took us . to the entire evidence of Shambhunath At the close of the cross -1 , examination of PW injured Shambhunath we found his admission that he had stated before the police in his statement 161 . . . under Section of Cr P C that after regaining consciousness in , the hospital his wife told him that the accused Babulal assaulted . him with a wooden stick He has further admitted that as he was , . fallen down in the gutter he sustained injuries After these two , admissions it appears that the learned APP in Trial Court had put - . - some questions in re examination We have considered that re . , , examination also Thus the evidence of the injured witness , though he is injured cannot be considered to be important since , whatever he has stated before the police had been stated on the . , instructions of his wife Logically an inference can be drawn that -1 the evidence of PW Shambhunath though injured is of no avail to . the prosecution This witness will have to be left out of the . consideration 10. -2 The learned APP took us to the evidence of PW -1 . Ramkali who is the wife of injured PW Shambhunath From her 8 , evidence it appears that her husband Shambhunath returned to 9 . . home at about a m She heard shouts and came out of the house and saw that her husband had fallen down and the accused Babulal . was holding a stick in his hand She also states that Kailash son of , accused Babulal daughter in law and wife of Babulal were standing . beside the accused The accused Babulal threw the wooden stick in . . his house Blood was oozing from the nostrils of her husband The . accused Babulal ran away She along with her brother in law Imrat . , rushed the injured Shambhunath to Police Station Thus the actual assault by the accused Babulal with a wooden stick on the head or . person of Shambhunath is not witnessed by Ramkali She found her husband fallen down on the ground and the accused was standing . , , holding a stick The evidence of Ramkali therefore cannot be said . , to be an eye witness account Therefore it is not possible for us to reach to the conclusion that the accused can be convicted on the . basis of the evidence of Ramkali 11. Learned Trial Judge has considered the material brought on record and justifiably reached to a conclusion that the 307 offence punishable under Section of the Indian Penal Code has . not been established The Judgment of acquittal rendered by the . learned Trial Judge cannot be said to be perverse It is not the case that the Trial Judge took into account inadmissible evidence and left admissible evidence out of consideration while recording acquittal 9 . in favour of the respondent 12. , , . Application for leave therefore stands dismissed . Leave refused JUDGE JUDGE // / MULEY /