State.Mr. Parag v. Barde
Legal Reasoning
-1- APPEAL-352-2005IN THE HIGH COURT OF JUDICATURE AT BOMBAYBENCH AT AURANGABADCRIMINAL APPEAL NO. 352 OF 2005The State of Maharashtra… Appellant.(Orig. Complainant)Versus1.Isak Amir Masuldar, Age : 54 years, Occu. : Murum, Tq. Omerga. 2.Jakir Yakub Masuldar, age : 25 years, Occu. & R/o. As Above.… Respondents.(Orig. Accused)…Mr. N. D. Batule, APP for Appellant – State.Mr. Parag V. Barde, Advocate for Respondent Nos.1 and 2.... CORAM : ABHAY S. WAGHWASE, J.DATED : 13th JUNE, 2024JUDGMENT : 1.As State is aggrieved by the judgment and order ofacquittal passed by learned Judicial Magistrate First Class, Omergain R.C.C. No. 59 of 2001, acquitting respondents from offencepunishable under sections 324, 323, 504, 506 read with section 34of Indian Penal Code (IPC), instant appeal has been preferred.FACTS LEADING TO TRIAL ARE AS UNDER2.Complainant and accused are relatives. There used tobe quarrel between them on account of erecting tin shed incommon passage. In such backdrop, on 09.02.2001 at about 9:40 -2- APPEAL-352-2005a.m., when complainant was standing in front of his house, at thattime, accused Isak and accused Jakir came there. At that time,complainant asked them not to erect the tin shed in the commonpassage. In such backdrop, accused Jakir caught hold of shirt ofcomplainant and gave him fist blows. Accused Isak also gave fistblows to the complainant as well as took bite of his middle fingercausing bleeding injury. As a result of which, complainant lodgedreport at Exh.18, on the strength of which, crime bearing no.19 of2000 came to be registered and crime was investigated and finallyboth accused were charge-sheeted for commission of offencepunishable under sections 324, 323, 504, 506 read with section 34of IPC.3.Learned trial court recorded evidence adduced byprosecution i.e. of five witnesses. Defence denied to lead evidence.On appreciation of oral and documentary evidence, learned trialcourt reached to a finding that prosecution failed to prove its casebeyond reasonable doubt and acquitted the accused by itsjudgment and order dated 31.12.2004 from all the charges.Feeling aggrieved by the same, State has takenexception to the judgment and order of acquittal.
Legal Reasoning
-3- APPEAL-352-2005SUBMISSIONSOn behalf of appellant – State :-4.Criticizing the judgment of acquittal, learned APPpointed out that, there is convincing and reliable evidence ofinjured PW1 complainant. His evidence about assault has remainedintact. That, his testimony has remained unshaken in spite ofextensive cross. That, he promptly lodged complaint. That, there ismedical certificate in support of the injury suffered bycomplainant. Therefore, according to learned APP, there wasoverwhelming evidence against both applicants. That, their roleswere clearly defined in the testimony of complainant and otherwitnesses. According to learned APP, apart from testimony ofinjured complainant, wife also deposed that, when her husbandobjected to erect tin shed, accused persons assaulted her husband,causing him injury to the finger. That, there was corroborativepiece of evidence in the form of very wife. However, same has notbeen considered and appreciated properly. Therefore, learned APPprays to re-appreciate the evidence and set aside the judgment byallowing the appeal.On behalf of respondent :- 5.In answer to above, learned counsel for respondentspointed out that, prosecution could not establish its case beyondreasonable doubt. Exaggerated version was reported to falsely -4- APPEAL-352-2005implicate in the backdrop of previous quarrel and enmity. That,there was no convincing evidence and therefore, according to him,learned trial court committed no error whatsoever in refusing toaccept the case of prosecution and holding that, case has not beenproved beyond reasonable doubt. Therefore, he prays to dismissthe appeal.EVIDENCE ON RECORD BEFORE TRIAL COURT6.PW1 Liyakatali, who is examined at Exh.17, deposedthat, accused are his neighbours. They were erecting partition oftin in his place and when he objected to the same, accused Isak andJakir hit him with fists. According to him, accused Jakir caughthim by his collar and gave him fist blows. At that time, accusedIsak caught his left hand and even bite his middle finger. That time,Shivanand and Ramesh arrived at the spot. Both accused fled fromthe spot.PW2 Shakilabee, deposed that, both accused arrived atthe spot with intention to raise partition shed. When her husbandobjected to raise partition in front of their house, accused Jakircaught collar of her husband. Accused Isak gave fist blows. He alsocaught left hand of her husband and bite his finger. Due to it, pieceof the finger fell down. Accused abused her husband andthreatened to kill. -5- APPEAL-352-2005PW3 Shivanand, an acquaintance of complainant andaccused, stated that, at the time of incident, he was present in frontof his house. On hearing noise, he reached at the spot. He sawaccused Isak catching hold collar of complainant. He stated that,complainant sustained bleeding injury to his finger. He stated that,he does not know exactly who caused bleeding injury tocomplainant.PW4 Ramesh stated that, on hearing noise he reachedat the spot and he saw that accused and complainant had caughthold each other. He claims to have been informed by thecomplainant that he sustained bleeding injury. According to him,out of two accused, one accused might have caused teeth bite to thecomplainant. PW5 Abas Patel, pancha to spot panchanama did notsupport the prosecution. Apart from above oral evidence, prosecution has placedon record injury certificate.ANALYSIS7.On re-appreciating the evidence of complainant, he isfound to have deposed that, on 09.02.2001, both accused were -6- APPEAL-352-2005erecting partition of tin shed over the common passage, to whichhe objected. According to him, Jakir caught hold by his collar andgave him fist blows on the back and neck. According to him, at thatpoint of time, Shivanand and Ramesh i.e. PW3 and PW4 camethere. Thereafter, accused Isak caught his left hand and bite hismiddle finger. Broken part of his finger fell at the spot and accusedran away. However, while under cross, he deposed that, he handedover piece of finger to police. Even, pancha to spot panchanama hasnot supported prosecution.8.PW3 Shivanand and PW4 Ramesh, who claims to havearrived at the spot while the incident was going on, have deposedthat, when they reached, at that time, complainant was alreadybleeding and the incident was over. PW3 Shivanand in hisexamination-in-chief itself has answered that, he does not knowexactly how complainant had suffered bleeding injury. Likewise,PW4 Ramesh is also not sure which of the two accused caused thebleeding injury. Therefore, here except complainant and his wifethere is no independent supportive evidence. Already there isenmity between parties. Mere medical certificate is placed onrecord. The doctor, who examined and authored the medicalcertificate is not examined to substantiate the said injury to be dueto bite. -7- APPEAL-352-20059.Therefore, with such quality of evidence no fault can befound in the trial court’s appreciation and conclusion. No case ismade out in appeal to interfere in the judgment. Finding no merits,I proceed to pass the following order :-ORDERThe criminal appeal stands dismissed. (ABHAY S. WAGHWASE, J.) Tandale