High Court · 2025

Legal Reasoning

921.Cri.Appeal-322-2023.docIN THE HIGH COURT OF JUDICATURE AT BOMBAYBENCH AT AURANGABADCRIMINAL APPEAL NO. 322 OF 2023The State of MaharashtraThrough Police Station, KotwaliDistrict Ahmednagar.. Appellant VersusShaikh Javed Moinuddin BagwanAge : 41 years, Occu.: Udayalpura,Kamwada, Ward No.4, Juna Bazar, Beed.At present R/o. Zareki Masjid, Ajijpura,Ward No.10, Samibhai Ghadiwale,Shirod Galli, Beed. .. Respondent****** Mr. A. V. LavteAPP for the Appellant.* Ms. Khan Sultana Rahim (appointed)Advocate for the Respondent***** CORAM : SANDIPKUMAR C. MORE AND MEHROZ K. PATHAN, JJ.. Date of Reserving the Order : 23rd September 2025 Date of Pronouncing the Order : 30th September 2025 FINAL ORDER [Per Mehroz K. Pathan, J.] :1.The Appellant/State has filed the present appeal, therebychallenging the judgment dated 10.11.2017 delivered by theAdditional Sessions Judge, Ahmednagar in Sessions CaseNo.133/2014, wherein the accused/Respondent – Shaikh Javed[1] 921.Cri.Appeal-322-2023.docMoinuddin Bagwan is acquitted for the offence punishable underSection 307 of the Indian Penal Code. 2.The case of the prosecution is that on 20.01.2024 at about07:00 pm., the Respondent/accused had been to the office of thecomplainant – Rehana Nawab Bagwan, who is serving as aChartered Accountant and demanded Rs.5000/- to go to hisvillage, Udayalpura, Beed and threatened her that if she doesn'tgive him that amount, he would kill her. The office boys namelyMukhtar and Abed had come on the spot and therefore he had ranaway. The complainant - Rehana Nawab Bagwan had her office inParshah Khut on first floor of Bakkar Kasab Masjid since 15 years.After the incident on 20.01.2014 at 07:00 pm., the complainantand her brother Aftab went to the office of the complainant ontheir motorcycle Karizma bearing registration no. MH-16-AR-125and reached the office on 21.01.2014 at about 11:15 am. When thecomplainant was about to get down from the motorcycle, one stonefell on the petrol tank of motorcycle from the gallery of the officeof the complainant. When Aftab saw towards the gallery, theaccused hurled second stone towards the motorcycle which hit onthe head of Aftab and resulted into causing bleeding injury. Whenthe accused was about to throw the third stone towards thecomplainant, persons nearby had gathered on the spot and caughthold the accused. The complainant took Aftab to the City CareHospital as he had become unconscious after receiving bleedinghead injury. The complainant had thus prayed for appropriateaction against the accused persons, for attempt to kill thecomplainant which hit her brother Aftab resulting into serious[2] 921.Cri.Appeal-322-2023.dochead injury. The crime no. I-24/2014 for the offence punishableunder Section 307 IPC was registered against the accused andafter completion of investigation, charge-sheet was filed underSection 307 IPC. The prosecution had in all examined sixwitnesses to prove their case and had also relied upon somedocuments of seizure, spot panchanama and medical certificate ofinjured Aftab. The learned trial court had also recorded statementof the Respondent/accused under Section 313 of the Code ofCriminal Procedure and after going through the evidence led bythe prosecution, was pleased to acquit the Appellant of the chargesof attempt to commit murder punishable under Section 307 of IPC.The State has thus filed the present appeal, challenging theacquittal of the accused/Respondent herein, inter alia on severalgrounds, including the ground of perverse findings arrived at bythe learned trial Court contrary to the evidence led by theprosecution. 3.The learned APP vehemently contends that there was nodiscrepancy in the testimony of PW-1/Rehana and PW-2/Aftab whowere the victims of the assault carried out by theRespondent/accused. The testimony of PW-1 and 2 was alsocorroborated by the deposition of PW-3/Muntazir who runs atailoring shop near the spot of the incident and that complainant’soffice is situated nearby his shop. The said witness had identifiedthe accused in Court which is an admissible identification and assuch there was no reason to disbelieve such an independent eye-witness.4.The learned APP has further relied upon the statement of[3] 921.Cri.Appeal-322-2023.docPW-5 – Dr. Sandip Surana who had stated to have examined theinjured PW-2/ Aftab and found injury CLW over left parietal regionwhich was grievous injury. The learned APP therefore submitsthat the attempt to commit murder of PW-1/Rehana can beestablished from the said injury. 5.The last witness relied upon by the prosecution isPW-6/Deepak Barde who was the Investigating Officer, who hadconducted the investigation and filed the charge-sheet. Thelearned APP Mr. Lavte therefore submits that the finding arrivedat by the learned trial Court is perverse to the evidence led by theprosecution. Moreover, the accused has failed to provide anyplausible explanation in the Section 313 statement recorded bythe learned Magistrate. As such, the cumulative effect of theevidence collected by the prosecution ought to have resulted in theconviction of the accused, which provides for a maximumsentence of life imprisonment.6.As against this, the learned appointed Counsel Ms. SultanaRahim Khan, has vehemently argued that the scope ofinterference in the matters of appeal against the acquittal is verylimited. The learned trial Court has noted the serious lacuna in theprosecution case and as such has recorded an order of acquittal,thereby giving a finding that no case is made out under Section307 of IPC as against the Appellants. She further states that thepossible view is taken by the learned trial Court and therefore thesame may not be interfered with by this Court. 7.We have considered the submissions made by the learned[4] 921.Cri.Appeal-322-2023.docAPP and the learned appointed Counsel Ms. Sultana Rahim Khanand have also gone through the record and proceeding alongwithjudgment passed by the learned trial Court. 8.The prosecution witness no.1 – Rehana Nawab Bagwan hadstated in a statement that on 20.01.2014 i.e. prior to one day of theincident, the Respondent/accused had threatened to kill her if shedoesn’t pay an amount of Rs. 5000/- to go Beed from Ahmednagar.If such was the case, complainant/Rehana not filing complaint byapproaching the nearest police station, is found to be unnatural bythe learned trial Court. The learned trial Court has also observedthat after a lapse of twelve years of their marital discord, it wasdifficult to believe that the complainant demanding Rs.5000/-. Thelearned trial Court further disbelieved the evidence led by theprosecution on the ground that the motorcycle on which the stonehad first fallen causing damage to the motorcycle, was not seizedneither any photograph of the damaged petrol tank of themotorcycle was brought on record. This according to the learnedtrial Court, is a serious lacuna in the prosecution case which couldhave corroborated to the testimony of the PW-1 and PW-2. 9.The learned trial Court has also considered that thoughthere was allegation about three stones being used by the accused,only one stone was seized from the spot. The Investigating Officerhas further failed to seize the blood stains clothes of Aftab and afalse reason stated in Exhibit-20 that the blood stains clothes ofAftab came to be washed. The seizure panchanama of clothes ofAftab is on 22.01.2014. The complaint is filed by Rehana on[5] 921.Cri.Appeal-322-2023.doc21.01.2014 at 06:45 pm. The accused is also shown to be arrestedon 21.01.2014. The Investigating Officer thus ought to have takenprecaution of seizing the blood stains clothes of victim Aftab, tocorroborate the evidence of PW-1 and PW-2. The conduct of thepart of the complainant is found to be suspicious and thereforedisbelieved. 10.The learned trial Court took note of the fact that the peoplewho were gathered on the spot allegedly caught hold of theaccused who was throwing stones from the office, were notexamined by the police. The evidence of PW-3/Muntazir had alsostated that some people had gathered on the spot. However PW-3/Muntazir admitted in his cross-examination that he did notapprehend the accused going on the gallery of the accused of thecomplainant. The prosecution witness no.3 had also stated in thestatement that the police had called him on phone to come topolice station to record his statement. This fact of the policeautomatically knowing about the eye-witness ready to deposeabout the incident is found to be a suspicious circumstance andPW-3/Muntazir is believed to be a got up witness of thecomplainant. 11.The medical evidence relied upon by the prosecution is thatof PW-5/Dr. Sandip Surana who had mentioned about the injuries.However in the medical certificate at Exhibit-35, there is nomention about whether the injury sustained by Aftab was simpleor grievous. The learned trial Court has therefore found the non-mentioning of the nature of injury in Exhibit-25 to be a defect andshrouded with clouds of doubt. [6] 921.Cri.Appeal-322-2023.doc12.Moreover PW-5/Dr. Sandip Surana has stated in his cross-examination that if a stone falls on the petrol tank of motorcycleand comes in reverse and hit a head of a person than the injuryfound on the person of PW-2/Aftab is possible. The learned trialCourt has therefore found defects in the prosecution case. 13.The learned trial Court has further taken into considerationthe serious lacuna left on the part of the Investigating Officer innot examining the nearby shop owners, also failing to examine thepersons who had apprehended the accused allegedly and also notseizing the motorcycle and stone from the spot and therefore didnot find any substance in the allegation of the complainant thatafter 12 years, the Respondent/accused had made a demand ofRs.5000/- to go to Beed from the complainant. The complainanthas also not placed on record to show that she had taken Talaqfrom the accused. The defence taken by the accused is that thecomplainant as well as her relatives are pressing him for Talaqand or to reside at Ahmednagar as Ghar Jamai to which theaccused has denied which has resulted into filing of the false case.The learned trial Court has therefore disbelieved the prosecutionwitnesses and acquitted the accused. 14.The parameters for scope of interference in the appealagainst acquittal, is that the judgment of acquittal shall sufferfrom patent perversity or that the same should be based uponmisreading of material evidence on record. It is also one of theimportant principles entertaining appeals against acquittal that iftwo views are possible, the Appellate Court may not over turn the[7] 921.Cri.Appeal-322-2023.docorder of acquittal only on the ground that another view is alsopossible. 15.In our view, therefore the view taken by the learned trialCourt in the backdrop of the evidence led by the prosecution and313 statement and relevant documents produced by theprosecution on record, is a possible view which calls for nointerference.16.The appeal against the acquittal filed by the State,challenging the judgment dated 10.11.2017 delivered by theAdditional Sessions Judge, Ahmednagar in Sessions CaseNo.133/2014, is hereby dismissed. 17.The fees of the appointed Counsel Ms. Khan Sultana Rahim isquantified as Rs. 15000/-. [ MEHROZ K. PATHAN ] [ SANDIPKUMAR C. MORE ] JUDGE JUDGENAJEEB..[8]