High Court

Legal Reasoning

-1- Cri.Appeal.488.2004IN THE HIGH COURT OF JUDICATURE AT BOMBAYBENCH AT AURANGABADCRIMINAL APPEAL NO. 488 OF 2004The State of Maharashtra, Through Police Station Officer,Jawaharnagar Police Station, Aurangabad… Appellant(Orig. Complainant) Versus1.Sheikh Jamir Sheikh Fakruddin,Age : 31 yrs. Occu. : Business, R/o. HUDCO, N-12, G-151, Aurangabad 2.Abdul Kadar @ Khadu s/o. Abdul AamodiAge : 30 years, Occu. : Business, R/o. Katkat Gate, Opp. Maksud Plasticwala, Aurangabad.3.Sayyed Kutubuddin S/o. Sayyed Shabir,Age : 30 years, Occu. : Business, R/o. Jafarnagar, Kiradpura behindEllora Steel, Aurangabad.… Respondents.(Orig. Accused)…Mr. S. M. Ganachari, APP for Appellant – StateMr. D. S. Manorkar, Advocate for Respondent Nos.1 and 3Mr. Rajendrraa Deshmukh, Senior Counsel i/b. Mr. D. R.Deshmukh, Advocate for respondent No.2... CORAM : ABHAY S. WAGHWASE, J. RESERVED ON : 11th JANUARY, 2024 PRONOUNCED ON : 19th JANUARY, 2024JUDGMENT : 1.By way of instant appeal, State has taken exception tothe judgment and order dated 29.03.2004, passed in R.C.C. No. 33 -2- Cri.Appeal.488.2004of 2003 tried for offence punishable under sections 324, 148 and506 read with 34 of Indian Penal Code (IPC).2.According to learned APP, all three respondents infurtherance of common intention had assaulted complainant on18.07.2002 by use of articles like base ball bat, fighter and knifeetc. That, in support of its case prosecution had examined in all 7witnesses. Medical witness was also examined, who had placedinjury certificate on record. However, learned trial court has failedto consider and appreciate the consistent direct eye witnessaccount and injured eye witnesses i.e. PW1 Piyush Naik and PW2Chunnilal Jadhav. Acquittal is on the ground that, there arematerial omissions, inconsistencies and variances which in factwere either not at all appearing in the testimonies and werematerial one so as to affect the case of prosecution.3.He further pointed out that, though there is recovery atthe instance of accused, such evidence is disbelieved and discardedon petty count like absence of signature of panchas. That, in factleaned trial court has adopted hyper technical approach.Occurrence was cogently proved, complaint was promptly lodged,still case of prosecution has not been accepted and therefore, it isprayed that, on re-appreciation impugned judgment be set aside byallowing the appeal. -3- Cri.Appeal.488.20044.Learned counsel for respondent No.1 and 3 (accusedNo.1 and 3) would submit that, prosecution miserably failed toprove the charges by adducing cogent and reliable evidence. That,there is inconsistencies in the prosecution witnesses including thatof complainant and so called eye witnesses, each of them is givingdistinct version and not corroborating each other. That, theirevidence is bereft of material particulars like actual place ofoccurrence, date of occurrence, roles and site of assault.Consequently, it is his submission that, case not being provedreasonable doubt, learned trial court rightly acquitted accused. 5.Learned Senior Counsel representing respondent no.2(i.e. accused no.2) would also submit that, there is weak and fragileevidence. Complainant’s evidence is not finding support orcorroboration from other witnesses. Accused persons were notidentified by conducting T.I. parade. Seizure of weapon is notproved beyond reasonable doubt and is rather surrounded bysuspicion. According to him, medical evidence is about simpleinjury and possibility of it being caused on account of fall has notbeen ruled out by him. That, entire evidence of prosecution beingfull of material omissions, improvements, variances and is rightlydiscarded by the learned trial Judge and he thereby prays todismiss the appeal for want of merits. -4- Cri.Appeal.488.20046.After considering the submissions of respective partiesand on going through the papers, it seems that, prosecution waslaunched against present respondents for commission of offenceunder sections 324, 148 and 506 read with section 34 of IPC. The sum and substance of the prosecution case is that,on 18.07.2002, accused persons in furtherance of commonintention voluntarily caused hurt to the complainant by use ofweapons like fighter and base ball bat, which were instruments forcutting and were likely to cause death. That, they had formedunlawful assembly and were armed with deadly weapon and hadput it to use and further had intimidated complainant and hencethe above charges. 7.On going through the trial papers, it is emerging that toprove the charges in all 7 witnesses have been examined i.e. PW1Piyush Naik complainant; PW2 Chunnilal an eye witness; PW3 Dr.Archana Bhosle, medical expert; PW4 Nilesh an eye witness; PW5Laxman and PW6 Gajansham panchas to spot panchanama andmemorandum of disclosure respectively and PW7 PSI Kotiye, theInvestigating Officer. -5- Cri.Appeal.488.20048.Here, on hearing both sides, crucial evidence seems tobe of PW1 Piyush i.e. complainant, PW2 Chunnilal an alleged eyewitness and PW3 Dr. Archana Bhosle and PW4 Nilesh. Rest arepanchas and investigating Officer. On steering through the evidence of complainant atExh.22, he seems to have deposed that, he had given an amount ofRs.2,000/- to accused no.1 two years back and when he demanded,accused refused to pay and threatened to see him tomorrow and onnext day while complainant was at his construction site, it isalleged that, accused came along with four persons in a vehicle.According to him, accused and those persons rushed over him,pointed knife on his neck and questioned him for demandingmoney. According to him, accused No.2 Abdul Kadir hit him withbase ball bat by giving 4 to 5 blows. Then accused no.3 Kutubuddingave a blow of fighter to him, resulting into bleeding injury on thelips of complainant and so he lodged report at Exh.23. But, incross, he answered that, incident took place on road. Nobodychased to catch hold of accused and even nobody came to rescuehim in spite of he shouting. He stated that, when he went to police,at that time, PW2 Chunnilal, one Sunil and one Kardile werepresent with him. He denied any transaction between him andaccused no.1. -6- Cri.Appeal.488.20049.PW2 Chunnilal deposed that, on that day, he wassitting near hotel around 2:30 p.m. that time, he heard the noise,attracting his attention and so he saw 3 to 4 persons hadsurrounded the complainant. Out of those, one gave blow with baseball bat and one was holding fighter and he gave blow with it on themouth of complainant and they fled. According to him, the personwho was holding base ball bat is Kutubuddin. According to him,fighter was in the hand of accused no.1 Sheikh Jamir. In cross he answered that, he does not rememberwhether he informed the police about the alleged occurrencetaking place on 18.07.2003 or not. Omission is brought about allaccused surrounding to the complainant and that accused no.1even gave blow with fighter. 10.PW4 Nilesh, who also claimed to be an eye witness is atExh.30, stated that, the alleged incident took place on 18.07.2002.According to him, accused no.1 pointed knife to the complainant,whereas remaining accused i.e. Abdul Kadar and Kutubuddin bothassaulted by means of base ball bat to the complainant, causinghim injury to the hand. Further according to him, accused no.1assaulted complainant with the fighter. However, in his cross,omissions are brought about accused no.1 showing knife to the -7- Cri.Appeal.488.2004complainant, about accuse no.1 giving blow of fighter on the neck ofcomplainant and about accused Kutubuddin and Kadar assaultingwith base ball bat.11.Therefore, on carefully analyzing evidence ofcomplainant and alleged eye witnesses, it is apparent that, they arenot consistent firstly on the point of the year in which the incidenttook place. Secondly, there is variance regarding who was holdingwhat and who assaulted where. Complainant speaks about knifebeing placed on his neck, but remaining witness are silent aboutthe same. There is variance about use of fighter, allegationsagainst accused no.1 raised by PW4 Nilesh is about assault oncomplainant by fighter and allegations against two accused areabout assaulting by means of base ball bat. Medical evidence isonly regarding abrasion and contusion and there is no injurysuggesting use of sharp weapon like fighter. 12.Though spot panchanama is shown to be got drawn onsame day, panch in cross stated that, he caused signature as policeasked him to sign and no other person was present at the time ofsigning of panchanama. Therefore, question is who showed thespot. -8- Cri.Appeal.488.200413.Though prosecution claims that there is recovery atthe instance of accused Sheikh Jamir in the backdrop ofmemorandum i.e. of base ball bat and fighter, it is apparentlycaused on 27.08.2002. Therefore, recovery is almost after threeweeks. However, according to complainant, use of base ball bat andfighter are attributed to accused Abdul Kadir and Kutubuddin.Therefore how recovery of such articles at all can be caused at theinstance of accused no.1 is an unanswered question. Thus, thereare material variances in the testimonies of prosecution witnesses. Therefore, on taking survey of prosecution evidenceadduced before trial court, there is no convincing and consistentevidence of complainant and rest of the witnesses. They are notlending support to each other on material counts. Consequently, case cannot be said to be proved beyondreasonable doubt. Learned trial court has correctly appreciatedavailable evidence and has rightly refused to record guilt asprosecution has failed to discharge its burden. There being nomerits in the appeal, I proceed to pass following order :-ORDER (i)The criminal appeal stands dismissed.(ABHAY S. WAGHWASE, J.) Tandale