(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 1 of 27 2026:BHC-AUG:5277 (2) 948criapl389.21 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 2 of 27 (3) 948criapl389.21 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 3 of 27 (4) 948criapl389.21 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. 4 of 27 (5) 948criapl389.21 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 5 of 27 (6) 948criapl389.21 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. 6 of 27 (7) 948criapl389.21 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. 7 of 27 (8) 948criapl389.21 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. 8 of 27 (9) 948criapl389.21 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 9 of 27 (10) 948criapl389.21 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 10 of 27 (11) 948criapl389.21 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 11 of 27 (12) 948criapl389.21 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. 12 of 27 (13) 948criapl389.21 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 13 of 27 (14) 948criapl389.21 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 14 of 27 (15) 948criapl389.21 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. 15 of 27 (16) 948criapl389.21 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 16 of 27 (17) 948criapl389.21 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 17 of 27 (18) 948criapl389.21 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 18 of 27 (19) 948criapl389.21 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. 19 of 27 (20) 948criapl389.21 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 20 of 27 (21) 948criapl389.21 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 21 of 27 (22) 948criapl389.21 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. 22 of 27 (23) 948criapl389.21 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 23 of 27 (24) 948criapl389.21 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. 24 of 27 (25) 948criapl389.21 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 25 of 27 (26) 948criapl389.21 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 26 of 27 (27) 948criapl389.21 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 27 of 27