1 30032017 judg. apeal 438.03.odt
IN THE HIGH COURT OF JUDICATURE AT BOMBAY :
NAGPUR BENCH : NAGPUR.
Criminal Appeal No.438 of 2003
The State of Maharashtra,
through Police Station Pusad. .... Appellant.
-Versus-
1] Usmanali Wajirali, (Appeal dismissed as abated
aged about 63 years, against resp. no.1 as per Court's
order dated 03-08-2015.)
2] Asgar Ali Usman Ali
aged about 25 years,
3] Issali Usman Ali,
aged about 28 years,
4] Sau. Ahemadbee Usmanali
aged about 53 years,
All r/o Pusad, Tq. Pusad, District Yavatmal. .... Respondents.
---------------------------------------------------------------------------------------------------------------
Shri A.S. Fulzele, Add.P.P. for appellant.
Shri A. K. De, Advocate for respondents.
---------------------------------------------------------------------------------------------------------------
Coram : B.P. Dharmadhikari &
V.M. Deshpande, JJ.
th
Dated : 30
March, 2017.
J U D G M E N T (Per V.M. Deshpande, J.)
The present appeal is filed against the judgment and order of nd acquittal passed by learned II Ad-hoc Additional Sessions Judge, ::: Uploaded on - 04/04/2017 ::: Downloaded on - 05/04/2017 00:32:20 ::: 2 30032017 judg. apeal 438.03.odt Pusad, dated 03-03-2003 in Sessions Trial No.3 of 1998, by which the accused nos. 1 to 5 in the trial were acquitted for the offences punishable under Sections 147, 148, 149, 307, 324 and 504 of the Indian Penal Code.
2] A charge under Exhibit-19 was framed against the five accused persons. According to the charge, they formed unlawful assembly with a common object to commit murder of the first informant, his mother and brother.
3] Though the charge was framed against the five accused persons and they all were acquitted, for the reasons best known to the State, the appeal was not preferred against the original accused no.4 Liyakatali.
Original accused no.1 Usmanali died during the pendency of the present appeal and therefore vide order dated 03-08-2015 the appeal was abated against him.
4] We have heard Shri A.S. Fulzele, the learned Additional Public Prosecutor for the State and Shri A.K. De, the learned counsel for the respondents. With their able assistance, we have gone through the record and proceedings.
::: Uploaded on - 04/04/2017 ::: Downloaded on - 05/04/2017 00:32:20 :::
3 30032017 judg. apeal 438.03.odt
5] According to the prosecution case, the injured and the accused
persons reside in front of each other. On 04-11-1997, accused nos. 1 to 3 had a quarrel with (PW-11) Arifabi the mother of the injured person. On getting the knowledge of the said quarrel, the first informant (PW-6) Mujafaroddin along with his brother (PW-10) Jakiroddin went to the accused persons and inquired as to why they quarreled with their mother. Thereupon, the accused persons abused (PW-6) Mujafaroddin along with his brother (PW-10) Jakiroddin and accused no.2 dealt a blow of knife to Mujafaroddin whereas the accused no.3 gave a blow of sword stick to Jakiroddin. Accused no.4 gave a blow of axe on the head of Jakiroddin. That time accused no.5 was exhorting that "both should be killed". They were rescued by Sk. Israil, Sk. Chotu, Sarfarajkhan Rahimkhan and Gulsherkhan Ibrahimkhan. The injured were taken to the Police Station where they lodged the report (Exhibit-89).
6] The injured were referred to the hospital at Yavatmal. At Yavatmal their dying declarations were recorded by the Executive Magistrates. Their clothes were seized. After the arrest of the accused persons on memorandum the weapons were seized. On completion of the investigation, the final report was presented.
7] In order to bring home the guilt, the prosecution examined 15
::: Uploaded on - 04/04/2017 ::: Downloaded on - 05/04/2017 00:32:20 :::
4 30032017 judg. apeal 438.03.odt
witnesses. The learned Judge of the Court below after appreciating the evidence acquitted all the accused.
8] The injury certificates of the injured are duly proved. The earlier statement of Mujafaroddin was recorded by (PW-9) Executive Magistrate Shri Vasant Joshi when he was at hospital and the same is at Exhibit-63. The earlier statement of another injured Jakiroddin was recorded by (PW-13) Executive Magistrate Shri Deshmukh and the same is at Exhibit-66.
9] The evidence of the first informant shows that he attributes role only to accused nos. 1 and 2. He is even silent in respect of the presence of the remaining accused persons. In our view, the Court below was right in recording the finding that in view of the evidence of injured (PW-6) Mujafaroddin the presence of accused nos. 3 to 5 is rendered doubtful.
10] Perusal of the evidence of (PW-10) Jakiroddin shows that his evidence is full of contradictions. It is full of improvements. All the improvements are duly proved by (PW-13) Executive Magistrate Shri Deshmukh.
11] On appreciation of the evidence, in our view, the learned Judge
::: Uploaded on - 04/04/2017 ::: Downloaded on - 05/04/2017 00:32:20 :::
5 30032017 judg. apeal 438.03.odt
of the Court below has rightly recorded a finding that there is a variance in view of the statements of the witnesses about the spot of incident. The witnesses are stating spot of incident differently. Thus, the spot of incident is materially changed by the prosecution witnesses. Further the recoveries from the accused persons, in our view, is hardly helpful to the prosecution. Since the places from where the recoveries are made were not in exclusive possession of the accused persons.
12] Further the arrest panchanama (Exhibit-27) shows that accused Sayyad Usman Ali, accused Issali and accused Asgar Ali also suffered the injuries. Those injuries are not explained by the prosecution.
13] The evidence of the prosecution witnesses shows that they are suppressing the genesis of the incident. The prosecution is not placing the true version as observed above. There is a change in the spot of incident. The evidence of material witnesses is full of contradictions and omissions which are duly proved and therefore, their evidence does not inspire confidence. This fact, in our view, was rightly weighed in the mind of the learned Judge of the Court below while acquitting the accused persons.
::: Uploaded on - 04/04/2017 ::: Downloaded on - 05/04/2017 00:32:20 :::
6 30032017 judg. apeal 438.03.odt
14] The evidence of the prosecution is too short to record a finding
that the accused persons formed unlawful assembly. The evidence of (PW-6) Mujafaroddin as observed above shows that only the presence of accused nos. 1 and 2.
15] The learned trial Court has meticulously appreciated the evidence. The view taken by the learned Judge of the Court below could not be said that said view is not possible. At any rate, the view taken by the Court below cannot be branded as perverse one. By now it is settled law, which established in respect of the power of the appellate Court to interfere with the judgment of acquittal. 16] In the present case, the learned Judge of the Court below has correctly appreciated and marshelled the evidence. The view taken by the trial Court is possible one. If that be so, merely because another view is possible the appellate Court should not substitute its view by disturbing the finding of acquittal. Consequently, the appeal fails and is dismissed. Hence, we pass the following order :-
ORDER
(i) Criminal Appeal is dismissed ::: Uploaded on - 04/04/2017 ::: Downloaded on - 05/04/2017 00:32:20 ::: 7 30032017 judg. apeal 438.03.odt nd
(ii) Judgment dated 03-03-2003 delivered by the 2 Ad-
hoc Additional Sessions Judge, Pusad, in Sessions Trial No.3 of 1998 is upheld.
(iii) Bail Bonds furnished by the respondents are cancelled.
(iv) Muddemal property be dealt with as directed by the trial Court after the appeal period is over.
JUDGE JUDGE
Deshmukh
::: Uploaded on - 04/04/2017 ::: Downloaded on - 05/04/2017 00:32:20 :::