ASHISH DNYANOBA DHAKANEversusTHE STATE OF MAHARASHTRA

2026:BHC-AUG:5277
                                                 (1)                  948criapl389.21




                        IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                                   BENCH AT AURANGABAD

                                CRIMINAL APPEAL NO.389 OF 2021

                Ashish S/o. Dnyanoba Dhakane,
                Age-34 years, Occu-Service,
                As Police Naik, Buckle No. 618
                Police Station, Omerga,
                Tq. Omerga, Dist. Osmanabad
                R/o. Dhaknewadi, Post Nandurghat,                    ...APPELLANT
                Tq. Kaij, Dist. Beed                                    [Ori. Accused]

                      VERSUS

                The State of Maharashtra
                through Police Inspector,
                Anandnagar Police Station,
                Osmanabad                                          ...RESPONDENT

                Mr. S. V. Dixit, Advocate for the appellant
                Ms. U. S. Bhosale, APP for the respondent/State

                                    CORAM : RAJNISH R. VYAS, J.
                                       DATE : 28th JANUARY, 2026


                ORAL JUDGMENT :

                1.          Heard respective counsels at length.

                2.          The appellant challenges the judgment of conviction in

                Sessions Case No. 137/2019 passed by the Additional Sessions Judge,

                Osmanabad dated 19-07-2021 for commission of offence punishable

                under Sections 307 of the Indian Penal Code [For short 'the IPC'] by

                which he was directed to suffer rigorous imprisonment for 7 years




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and to pay fine of Rs.25,000/-, in default to suffer simple

imprisonment for a period of six months.

3.           In brief, it is the case of the prosecution that on the day

of the incident, the appellant went to the flat of the injured, locked

the door, took her to the terrace and from the terrace the victim was

thrown.

4.           In the aforesaid background, criminal law was set in

motion. To test the quality of the evidence presented by the

prosecution, it is first necessary to discuss the spot of the incident.

SPOT OF INCIDENT:

5.           The spot panchanama of the offence is proved by the

prosecution with the help of the testimony of PW-17- Bhaurao

Tadkar, who was attached to Osmanabad Panchayat Samiti Office as

a Senior Assistant, and was called to the police station. Accordingly,

the PW-17, police officer by name Rathod, along with other police

staff and panch, went to Nirmal Apartment, Krushnanagar,

Osmanabad, by vehicle. They went to flat No. 8. There was a seal on

the door, which the police removed, and thereafter entry was taken.

In the said flat, they found a revolver in the box of the TV set, and 10

bullets.

6.           PW-17, along with police staff, came out of the flat and

went to the terrace. Thereafter, they inspected the spot, more


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particularly the wall and came down. They measured the building's

height and then went to the police station. The panchanama was

accordingly prepared and marked as Exh. 62.

7.          From the spot of the incident, a register having 77 pages,

which was given by Ramdattagiri (father of the victim), clothes and a

mobile were seized. He deposed that 'Sulekha' was written on the

register. The police also seized a red-coloured MI mobile, and the

seizure memo was marked as Exh. 63. This recovery was made under

Section 165 of the Code of Criminal Procedure. In cross-examination,

this witness has admitted that the Nirmal Apartment building has 5

ducks. The flat's iron door opens to the outside, and the wooden door

opens to the inside. He stated that there may be 32 or 44 steps to

reach flat No. 8. A similar number of steps to reach the terrace from

flat No. 8. He admitted that, besides the flat leading to the terrace,

there is a door to the staircase. He could not tell which side the door

opened. He admitted that all the panchanamas were done in the

presence of Rathod.

8.          If Exh.62 is perused, it would reveal that the apartment,

i.e., the Nirmal apartment, has an iron gate through which entry can

be made. The passage from the entry gate to the Nirmal apartment is

16 feet, of which the victim was lying 7.7 fts from the iron gate. The

victim resided in flat No. 8, and 37 steps were required to reach it


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from the ground floor. To get to the terrace from flat No. 8, 42 steps

must be climbed.

9.             Spot panchanama further shows that 5 feet from the

staircase was an iron door. From the said iron door, a parapet wall is

situated at 2.9 ft. The distance from the terrace to the ground floor is

44 ft.

10.            This spot panchanama was drawn in the presence of

police officer Rathod, and therefore, his testimony will have to be

looked into.

11.            PW-24 is the witness by name Motichand Rathod, who

stated that on 16-09-2017, he was working as a Sub-Divisional Police

Officer at Osmanabad. So far as the spot of the incident is concerned,

he has said that after PSI Siddhe, the panchanama of the place and

Madam's (injured) flat was done. It was found that she was staying in

Flat No. 8, Nirmal Apartment, Osmanabad. Thus, it is clear that the

spot of offence is proved by the prosecution with the testimony of the

aforesaid two witnesses. Even otherwise, the defence has not

challenged the place of the incident with seriousness. On the

contrary, it has relied upon.

12.            Coming to the manner in which the incident has taken

place, it would be necessary to appreciate the evidence of relevant

witnesses.


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INCIDENCE :

13.           Injured is PW-1-Manisha Giri, who was examined by the

prosecution below Exh. 28. Testimony of this witness is discussed in

brief to avoid repetition. She stated that the incident occurred on 31-

05-2019 between 06.15 and 06.45, when the doorbell of her flat

rang. She accordingly woke up and went towards the door, and saw,

through the hole in the door, that the appellant was standing outside.

She then opened the door, and the appellant immediately struck her

with a fist blow to the face. The injured then tried to shout, but the

appellant picked her up and took her to the terrace by lifting her and

threw her down from the terrace. She stated that while she was

taken, she made every attempt to move her hands and legs. However,

the appellant held her hands and legs very tightly so that she could

not resist.

14.           At this juncture, it is necessary to mention here that the

victim of the crime was at the relevant time working on the post of

Police-Sub-Inspector and was attached to City Police Station,

Osmanabad. The appellant was occupying the post of driver attached

to the Anandnagar Police Station, Osmanabad. It is necessary to

mention here that, in cross-examination, this witness categorically

stated that she had received training in self-defence as well as

physical education. She also admitted that during the training


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session, she was apprised of various criminal and civil laws. She also

admitted that in all these examinations, she secured good numbers.

15.         Thus, the actual incident will have to be looked into from

the aforesaid angle. One cannot ignore the fact that at the time of the

incident, the victim was 29 years old and, as such, was relatively

young in the police department.

16.         The appellant was arrested on 29-06-2019, and no injury

was found on his person. It may be due to a lapse of time since the

incident took place on 31-05-2019.

17.         Be that as it may, the question is whether the version

advanced by the prosecution is proved beyond a reasonable doubt

and whether it would appeal to a man of ordinary prudence. The spot

panchanama, which has already been discussed, clearly reveals that

the panchas have not noticed any peep hole in the door. Panchas

have also stated that it required 44 steps to reach the terrace from the

flat No. 8. The victim has admitted that when the accused had

forcibly lifted her and was proceeding towards the terrace, she made

every attempt to resist the act by moving her hands and legs, but her

hands and legs were tightly held by the accused. If the incident site is

examined, it would be clear that there is a parapet wall 2.9 ft high,

which would make it a herculean task for person by lifting a lady to

climb 44 steps and throw from the terrace.


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18.          It is further pertinent to mention that, even according to

the prosecution, the incident occurred between 06.15 and 06.45 in

the morning. The victim stated that she had shouted during the

incident.

19.          In this regard, the testimony of the landlord of the victim

is required to be looked into.

20.          PW-4 is one Ramakant Garad, who, in his evidence, has

stated that he was the owner of flat No.8, which was given on rent to

the victim on a monthly rent of Rs. 7500/-, and maintenance and

light bills were to be paid separately. He submitted that he had asked

the injured to vacate the flat. In the cross-examination, he had stated

that there were four flats on the second floor of the apartment, out of

which one was his, and his brother owned two.

21.          In front of flat No. 8, there was flat No. 5. Flats Nos.5, 6

and 7 were in a clockwise manner. His flat’s door was near the

staircase. The door of his flat was wooden, and there was an iron

door as well. According to him, keeping the iron door open would

create an obstacle to coming up the staircase. He admitted that the

wooden door opens inside the flat. There is no eyeball to the door.

He further stated that the lower half of the iron door is packed, the

upper portion is a grill, and there is a wooden door for the terrace.




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The staircase's width was 3 feet. There was a 6 feet distance between

the flats 8 and 5.

22.           Flats of his brother were also on rent. He also admitted

that in the morning, for Yoga and exercise, women of the apartment

use the terrace, and there were a total of 6 air ducts. He further

admitted that at 06.00 am, papermen and milkmen visit to the

apartment. He specifically admitted that if someone else opens the

terrace door, the flat owners will find out. The key to the terrace was

with the watchman.

23.           If the testimony of the above-said witness is perused, it

would be crystal clear that in front of flat No.8, there were other

flats. He also deposed about the width of the staircase. Thus, it

cannot be ignored that if the injured was resisting the appellant,

when she was taken to the terrace, through the stairs, and attempted

to move her hands and legs, resistance marks would have been found

on the wall, or on the door or terrace. The prosecution has brought

nothing on record to substantiate the aforesaid fact. The version of

the injured, in the above-mentioned background, does not inspire

confidence.

24.           Let us see whether any independent witness is

supporting the case of the prosecution.




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WITNESSES WHO SAW THE VICTIM FALLING

25.         PW-10-Jawad Ajmad Khan Pathan is the witness who

saw the victim falling. PW-10, who was 16 years old, stated that on

31-05-2019, he and his father arrived at the Udan office by Indigo

car. The parcel was kept on the car's carrier. There was a slope

downwards. Hence, the father asked him to hold the parcel with his

hand. At which time, he saw something like cloth falling from the

building. When the vehicle reached near, he realised that the girl had

fallen. His father then parked the car on the side, and thereafter, both

of them went there. They got frightened by seeing blood. His father

then asked to call someone from the office. At which time, Mayur

Fatate was present there. PW-10 then called him, and thereafter he

went to the hospital. There, he called one uncle to bring the

stretcher, by which time, said Mayur, the father of PW-10 had

brought the girl.

26.         He was cross-examined by the defence, during which he

stated that, when PW-10, along with his father, was moving towards

the left, he heard the sound 'iMyh iMyh '. They headed toward the

sound after hearing it. Some people on the terrace were shouting

'iMyh'. He stated in cross-examination that his father asked some

women standing near the building's window for help, but no one




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came. He stated that Saad gave the key and the mobile to the person

present there. He denied having any idea about the incident.

27.          Now coming to the testimony of father of PW-10 i.e. PW-

8, -Mohd. Amjadkhan Yunuskhan Pathan, who has stated that he

worked as a courier agent and thereafter went to the office to drop

off a parcel, and his son, PW-10, was also there. He asked his son to

look after the parcel from the window, and when the vehicle reached

near the Nirmal Apartment at that time, his son saw a girl falling, and

he shouted ' cPph xhjh cPph xhjh ' . On the first floor of the building, two

women were in the window. But those women did not provide him

with any information. Then he took the victim to the hospital. As

there was a fast of Ramzan, he got tired when the slope of the road

was upward. Therefore, he kept the girl on the floor for some time.

Thereafter, 2-3 people came there. They helped PW-8, and the girl

was kept on a stretcher in the hospital. His clothes were stained with

blood which was washed on the tap in the parking.

28.          He deposed that the persons who helped him included

one who was working in the office of Udan, one who went for a walk,

and a third person who was shown to him on the Laptop through VC.

29.          During    cross-examination,     he   stated    that   at   the

Superintendent of Police's office and on another occasion, Rathod

recorded his statement. He did not state portion mark-A and B in the


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statement. So far as the portion mark-A is concerned, it states that

“PW-8 has stated that when he was lifting the girl, one person came

out of the building. The said person used to come on the bullet on

some occasions. He told that girl was a lady police officer and that he

was also a police officer, and disclosed his name as Ashish Dhakne”.

30.         So far as portion mark-B is concerned, it is mentioned

that “'after meeting he has stated that since 3-4 days madam was

under tension' and was harassed by the seniors. Therefore, though he

tried to stop the victim from committing suicide, the victim had

already jumped.” When aforesaid portion mark-A & B confronted to

PW-24-Motichand Rathod, he denied the fact that the portion mark-A

& B was told to him.

31.         There is one more witness who has provided immediate

help to the victim by taking her to the Pulse Hospital. Said witness is

PW-5 Chandrakant Kawade. He stated that on 31-05-2019 at 06.00

am, he went for a walk. When he was behind the Pulse Hospital, he

saw two boys carrying a girl to the hospital. Those boys looked tired,

and the back of that girl was touching the ground. Therefore, he

lifted her, and helped the boys.

32.         He has stated that he was not aware what happened

after admitting the girl to the hospital. He admitted that he learned

from his brother that the girl was a police inspector. Sidhe police


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recorded his statement, and thereafter, his statement was not

recorded. He stated that he had not said to the police that 'a small

boy was shouting that the girl had fallen, the girl had fallen'. He

stated that Rathod had not recorded his statement. He denied the

suggestion that he saw boys carrying a girl from the backside of Pulse

Hospital towards Terna College. Those boys looked tired, and the

girl's back was touching the ground. Therefore, he put his hand under

her neck, lifted that girl and helped the boys. He denied what was

stated in chief, was false.

33.          If the testimony of PW-10, PW-8 and PW-5 is holistically

read, it would be clear that none of them has stated anything

suspicious about the incident. PW-10 saw the clothe falling from the

building, and later he came to know that it was a girl who had fallen

from the terrace, whereas PW-8, the father of PW-10, shouted 'cPph

xhjh '.

34.          At this juncture, it is further necessary to mention that

this witness has admitted in cross-examination that Saad had picked

up the girl's keychain with a doll and her mobile from the spot where

the girl had fallen. The key and mobile were then handed over to the

appellant. Thus, the fact remains that at the relevant time, the key

and the mobile phone were found at the spot where the victim had

fallen and handed over to the appellant.


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35.         This takes me to further aspects of the case as to whether

the appellant was present on the spot or not.

The Presence Of The Appellant.

36.         As already discussed, PW-8 has stated that Saad had

taken a keychain with a key and a mobile of the girl from the spot

where the injured had fallen and handed it over to the accused, who

had come on the main road.

37.         In his cross-examination, he admitted that when he was

taking the victim to the hospital and had kept the victim on the road

for some time, the appellant came in a vehicle and helped him. The

appellant then caught hold of the legs of the victim, due to which the

clothes of PW-8 and the appellant got stained. Thus, according to this

witness, who was as an independent witness, the accused reached the

place on the motorcycle when the victim was taken towards the Pulse

Hospital.

38.         The prosecution has not invited my attention to any

piece of evidence which would show that the appellant was present

on the spot before the incident or at the time of the incident. Except

for the testimony of PW-1, who has stated that the appellant came to

her house, rang the doorbell, lifted her, took her to the terrace and

threw her, nothing has been brought on record. Thus, the question




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that now falls for consideration is whether the testimony of PW-1, the

star witness, can be relied upon.

39.          Before discussing the testimony of PW-1-injured witness,

the law laid down by the Hon'ble Apex Court in various judgments is

required to be considered. In brief, it can be said that witnesses are

categorised as "wholly reliable witnesses", 'wholly unreliable

witnesses "partly reliable witnesses", or "partly unreliable witnesses".

The Apex Court has stated that the testimony of injured witnesses

should not be lightly ignored. The Apex Court further noted that

minor contradictions and omissions are to be ignored, and what is to

be looked into is the ring of truth as reflected in the prosecution's

testimony.

40.          It is also essential to keep in mind that an injured

witness is a natural witness and, testimony can be relied upon as it is,

if there are no other circumstances that would weaken the

prosecution's case. In this background, the testimony of the star

witness, PW-1, is required to be appreciated.

TESTIMONY OF PW-1/INJURED WITNESS:

41.          PW-1, as discussed (supra), has categorically stated that

the incident took place in the morning hours on 31-05-2019, when

the doorbell rang. She looked from the peep hole in the door to the

accused standing outside. Thereafter, when she opened the door, the


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accused hit her with a fist blow on the face and thereafter lifted her,

which act was resisted by her, then took her to the terrace and threw

her. The spot is already discussed. The testimony of PW-1 is also

considered to test the prosecution's contention regarding the motive

for the crime. To test the motive of the crime, it is necessary to state

that when the prosecution's case is based on the eyewitness's version,

the motive will take a back seat.

42.          Thus, there comes a witness by the name of Rupali

Kamble, PW-2, who was examined by the prosecution. This

witness/PW-2 was introduced in testimony of the victim. The victim

has stated that Rupali Kamble was residing in the house situated

opposite the police headquarters, and that she was a friend of the

appellant.

43.          On 30-05-2019, PW-1 went to the house of Rupali to

meet her, at which time Rupali, her mother, and one girl were

present. At that place, the present appellant had come. When PW-1

was asking Rupali about her relationship with the appellant and

further enquired as to why she had sent the messages, at that time,

the appellant drove her out, and also abused and assaulted her. The

appellant also told her to leave the house immediately. PW-1,

thereafter, instead of going to the police station, had gone to her

house.


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44.         She has further stated that in the month of May, 2019,

she was at Nanded for undergoing Cyber Training, and five police

officers were selected for training along with PW-1. Among them was

Sudhir, who had a four-wheeler. When PW-1 went to Nanded along

with him in his vehicle, the appellant started suspecting PW-1. The

appellant objected to this. The victim told him that the appellant was

not her husband and, according to her, the appellant used to come to

her house and meet her.

45.         One day, the appellant forgot his mobile and it was

opened using the password and in which PW 1 saw the old messages

from Rupali-PW-2. She took screenshots of the messages, and sent

them to the appellant. When enquired, the appellant broke the PW-

1's MI phone and gave his red-coloured MI phone to PW-1. Initially,

the appellant told her that he was unmarried; later, she came to

know that he was married. It is due to this reason that the appellant

used to beat her and threw her from the terrace.

46.         At this juncture, it is necessary to mention here that since

the police were not aware as to whether it was a case of attempt to

commit suicide or an attempt to murder, an offence under section

309 of the IPC was registered against the PW-1. In that regard, it is

necessary to appreciate the testimony of PW-23, Dadasaheb, who has

deposed that, between 16-08-2014 and 14-06-2019, he worked at


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various police stations in Osmanabad. From June 2018 to June 2019,

he was attached to the Anandnagar Police Station. On 31-05-2019 at

09.00 am, PSO Tarte told him over the phone that the female Police

Sub-Inspector had fallen from the fourth floor, and MLC was

obtained. He immediately went to Pulse hospital along with other

personnel, at which time, the victim was in the ICU and could not

speak. Her physical condition was serious.

47.         He stated that later on, the victim was shifted to

Yashodhara Hospital, Solapur. Thereafter, he himself made a

complaint and registered a crime, and his complaint was marked as

Exh. 90, which he proved. In cross-examination, he admitted that

PW-1/victim had lodged the complaint with the police station against

PI Khade for sexual harassment and recorded it in the station diary.

He stated that people in the Nirmal apartment were not ready to give

a statement. He had recorded a statement from Chandrakant, who

was residing beside the building. Suspicious medicine was found in

the flat. He stated that senior officers were making enquiry

telephonically. He denied the suggestion that he was deposing

falsely. If Exh.90 is perused, more particularly last paragraph, it

would be clear that this witness has categorically stated that when

enquiry of MLC was conducted at the place of offence, by recording

statements of persons who were residing in the adjacent house and


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after considering the circumstances of the spot, it was concluded that

the offence under section 309 was committed.

48.         It is pertinent to mention here that the enquiry report or

statement recorded during the MLC was not produced on record by

the prosecution. Thus, it can be said that the prosecution suppressed

the very genesis of the offence. The statement recorded would have

shown exactly what happened that day. Since the prosecution has not

brought the aforesaid material on record, an adverse inference can be

drawn that those statements were not favourable to the prosecution.

Thus, it cast serious doubt on the prosecution's case.

49.         So far as the point of motive is concerned, the testimony

of PW-2 is discussed in brief. PW-2, in her testimony, has

categorically stated that in 2017, the accused introduced her to

Manisha-PW-1, and they shared mobile numbers. As PW-2 was

preparing for the MPSC examination, PW-1 suggested various books

for preparation. She further stated that in June, 2018, PW-1

telephoned her, and since PW-2 was busy with her examination, she

did not answer the call. She saw 24 missed calls from her. PW-1 then

sent her a message asking if she wanted to talk about the accused.

When PW-1 asked her about the relationship, PW-2 said that the

appellant and PW-2 were friends. The testimony of this witness

shows that PW-1 has enquired about the relationship between PW-2


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and the appellant, since several messages were found to have been

exchanged between the two. Testimony indicates only that there was

a friendship between this witness and the appellant, and that the

same was viewed with suspicion by PW-1. In fact, the testimony of

PW-1 and PW-2, so far as the relationship with the appellant is

concerned, reveals that PW-1 suspected the appellant's relationship

with PW-2.

50.          PW-3 is the father of the victim who deposed that he had

received a telephonic call on 31-05-2019 from the appellant who

stated that the victim had sustained injuries after falling from the

staircase. Thereafter, he again called the PW-3 and stated that victim

slipped and got injured. The appellant finally informed that the

victim had jumped from the fourth floor. He deposed that when he

was in the hospital, the appellant tried to create a picture by meeting

a journalist and police officers, that, it was a case of suicide.

51.          PW-3 has further stated that when PW-1 regained

consciousness in the hospital, by making gestures and signs and also

by writing, she had stated that she had not attempted to commit

suicide. He stated that on one chit, PW-1 had written that she had

been to Rupali's house, where the quarrel took place. On the second

chit, she stated that PI Khade, Journalist Vikas Khade and the

appellant are responsible for her suicide.


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52.         PW- 3 has deposed that on 09-06-2019, the appellant

and one more police officer, Pathan, had visited the Yashodhara

Hospital. At that time, the Pathan informed the son of PW-3 that the

appellant had thrown her from the fourth floor.

53.         Testimony of this witness shows that the victim had

attempted to narrate the incident by writing on a piece of paper. It is

pertinent to note that three different versions are emerging from the

writing. First, that the victim had quarrel at the house of Rupali,

second, PI Khade, Journalist Vikas Khade and the appellant were

responsible and third, she stated that she had not attempted to

commit suicide. Thus, even according to the version of PW-3, it

cannot be said whether it was an attempt to commit suicide or an

attempt to commit murder. Suffice it to say that the prosecution has

not proved the case beyond a reasonable doubt.

54.         There is one more reason to conclude. As to the victim's

writing on a piece of paper, PW-1 has also stated that she wrote notes

in the register. The opinion of the Handwriting Expert is below Exh.

108. The Handwriting Expert attached to the Assistant State

Examiner of Documents, CID, MS, Aurangabad, has opined that the

enclosed writing mark by him as Exh. Q-1 is written by the writer

who has written the enclosed writings, marked by him as Exh.S-1 to

S-6. To understand the opinion, it is necessary to state that S-1 to S-6


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are the specimen handwriting of the PW-1. Exh.Q-1 was the question

notebook, as is clear from Exh.108-C, more particularly the enclosure

to Exh.108. It is thus crystal clear that the question whether the note

book, i.e., the questioned documents, bear the handwriting of the

victim, is not proved by the prosecution beyond a reasonable doubt.

Even otherwise, the report submitted by the handwriting expert is

just an opinion.

55.         It is further necessary to mention here that the statement

of the victim was recorded for the first time in the hospital by PW-24

Rathod, who was working as Deputy Superintendent of Police at

Osmanabad. In his statement, he stated that on 29-06-2019, he,

along with Superintendent of Police S. S. Bhor and an IBM employee,

visited the Yashodhara Hospital, where the victim was admitted, and

the victim's statement was recorded there. The said statement was

marked as Exh. 29. In his examination, he stated that the medical

officer had given his remark on the said statement, had also put his

signature, and that it was after the recording of the statement that

the offence under section 307 of the IPC was added.

56.         It is necessary to mention here that on 07-06-2019, this

witness had visited the Yashodhara Hospital, at which time he was

informed that the injured was in an unconscious condition and could

not speak. He revisited the hospital on 12-06-2019, on which date it


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was also informed that the victim was not in a position to give a

statement. For that purpose, a letter was issued by the PW-24 to the

concerned medical officer, which is proved below as Exh. 96, and the

said communication was replied to by the medical officer by its letter

below as Exh. 97.

57.         It is necessary to go through the Exh. 96 and 97 to see

whether the statement recorded on 29-06-2019 by PW-24 can be

relied upon or not. Exh. 96 is the letter given by the Investigating

Officer to the Medical Officer asking whether the victim is in a fit

condition to give a statement. This letter was replied to below Exh.

97 in which the Doctor/Medical Officer has communicated that the

victim is having polytrauma & multiple fractures for which she is on a

higher dose of analgesics and sedation. So whatever statement she

gives or answers to is not reliable. On that day, her statement was not

recorded. Exh. 86 is another communication issued by the Police Naik

attached to the Jail Road Police Station, Solapur City, who has made

a similar enquiry from the Medical Officer attached to the hospital in

Solapur, and the remark was made that the patient is unconscious

but unable to give a statement due to a tracheostomy. Similar

communication was made by the same Officer on 12-06-2019, as per

Exh. 35, and was replied to by the medical officer, who remarked

that the patient was on a ventilator and unable to give a statement.


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Thus, on 12-06-2019 & 29-06-2019, the patient was not in a fit

condition to give a statement.

58.         At this stage, it is necessary to look into the testimony of

person who was on duty as Medical Officer. The said person is Doctor

Sharan Patil, who was examined as PW-22. This witness stated in his

testimony that on 29-06-2019, he was on duty at Yashodhara

Hospital and police recorded the injured's statement before him. He

stated that he had signed the statement. In cross-examination, he

stated that on 29-06-2019, Deputy Superintendent of Police Rathod

and Additional Superintendent of Police Bhor had been to the

Yashodhara Hospital. He stated that they had already started talking

with PW-1 /Manisha. Parents and brother were present there. He

admitted that Mr. Rathod and Mr. Bhor asked the question, and the

victim replied. He admitted that after the recording of the statement

was completed, they obtained his signature. He further admitted that

due to tracheostomy, the patient was unable to speak, and there were

multiple fractures to the ribs, hand and leg of the injured. He

admitted that due to tracheostomy, the patient could not speak

continuously. He admitted that he was on duty, therefore, the police

obtained his signature. At this juncture, it is necessary to mention

here that on 29-06-2019, the victim was also given treatment and

due to the tracheostomy, she was unable to speak. It is necessary to


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mention here that the victim was discharged on 12-07-2019. Thus it

can be said that victim was under continuous medical treatment and

on several occasions an attempt was made to record her statement.

The victim was having trach on the earlier days when police intended

to record her statement so also on the day when her statement was

recorded .

59.          So far as seizure of clothes of the accused and the victim

is concerned, much is not disputed by the defence also. The blood

was found on the clothes of the victim, which were referred for

forensic examination. Exh. 125 is the report of the blood of the

victim, which shows that her blood group was 'O'.

60.          Clothes of the accused, a shirt and full jeans, were at

Exh.1 and Exh. 2. As stated in the Chemical Analysis report, on Exh.

1, there were a few blood stains ranging from about 0.1 cm to 3 cm

in diameter at the front portion. Whereas Exh. 2 had a moderate

number of blood stains, ranging from about 0.1 cm to 3 cm in

diameter, mainly on the left upper leg.

61.          Exh. 7 was a half-shirt, in which no blood was detected.

So far as blood on Exh.1 is concerned, it was opined that it was of

'human but inconclusive', whereas Exh. 2, which was full jeans, it was

opined that it was human blood having the 'O' group.




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62.          According to the prosecution, blood on the clothes of

accused shows that the appellant was present on the spot and

involved in the crime. Suffice it to say that as per evidence, the

appellant reached on a motorbike and lifted the victim and therefore

it can be said that blood stains were found on the clothes of the

person.

63.          Coming to the enquiry conducted by the court by

subjecting the accused to questions under section 313 of code of

Criminal Procedure , in which the accused has taken a defence that it

was a case of false implication. In answer to question No. 128, the

appellant had stated that initially, a case under section 309 was

registered against the complainant, and she being a police officer, she

was well aware of the law; further to save herself, she lodged a false

complaint against him.

64.          The discussion (supra) under the head 'Spot of Incident'

shows that the evidence adduced by the prosecution is not cogent or

reliable. Though the PW-1 is an injured witness, her testimony will

have to be read in the background of other evidence as well. The

victim is a police officer, and thus it would not be easy to lift her

against her will, took her by climbing 47 steps to the terrace and

threw her. The fact remains that on the floor of the victim's flat, there

were three other flats. It was May 2019, and the incident had


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occurred at about 06.15 in the morning. Judicial notice can be taken

of the fact that during the summer, it dawns early. Failure to examine

the material and natural witnesses also goes to the roots of the

matter.

65.         It can be said that the prosecution has suppressed the

genesis of the crime, since the enquiry conducted and the statement

recorded in pursuance of the MLC were not brought on record.

66.         Ms    Bhosale,   learned     APP,   despite     the   aforesaid

discussion by the court, has again contended that the prosecution has

proved the case beyond a reasonable doubt, and the conduct of the

accused, as per the provisions of the Indian Evidence Act, plays an

essential role. She submitted that there was absolutely no reason for

the accused to remain present at the scene of the incident. She

submitted that the accused, being a police officer, was under a legal

duty to inform the concerned police station, moment he came to

know that the victim had sustained an injury.

67.         According to her, instead of telling the police, he took

the victim to the hospital. She further submitted that to paint a false

picture, the accused visited reporters and police officers and stated

that the victim had committed suicide. Prima facie, Ms Bhosale may

be right, but there is nothing suspicious if accused found it

appropriate to take the victim to the hospital rather than informing


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the police. By meeting the journalist and police officers, I do not

think the appellant has committed any wrong. By meeting the

journalist and police men, it cannot be said that the accused has

shown his guilty mind. In fact, he has narrated his own version. Even

otherwise, the defence's weakness cannot be a ground for showing

leniency to the prosecution for not proving the case beyond a

reasonable doubt.

68.               In that view of the matter, I am of the opinion that the

evidence tendered by the prosecution was not sufficient to satisfy the

ingredients of the offences registered. Hence following order is

passed.

                                    ORDER

                  a]         Judgment passed by the Additional Sessions
                  Judge, Osmanabad, in Sessions Case No.137/2019 dated
                  19-07-2021 is set aside.

                  b]          The accused is acquitted for commission of
                  offence punishable under Section 307 of the IPC.

                  c]          The bail bond stands cancelled.

                  D]          The appeal is accordingly allowed.



                                          [RAJNISH R. VYAS, J. ]

VishalK/948criapl389.21




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