Bombay High Court
The State Of Maharashtra vs Iqbal on 15 December, 2011
Bench: Shrihari P. Davare
1 cra95.01
IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
AURANGABAD BENCH, AURANGABAD
CRIMINAL APPEAL NO. 95 OF 2001
The State of Maharashtra ...Appellant
(Orig.complainant)
VERSUS
Iqbal s/o Karim Ansari ...Respondent
(Orig.accused)
.....
Smt. Y.M.Kshirsagar, A.P.P. for appellant
Shri Sachin S.Bhise, advocate h/f
Shri S.B.Bhapkar, advocate for the respondent
.....
CORAM : SHRIHARI P.DAVARE, J.
DATE OF RESERVING
THE JUDGMENT : 07.12.2011
DATE OF PRONOUNCING
THE JUDGMENT : 15.12.2011
J U D G M E N T : -
1 Heard respective learned counsel for the parties.
2 cra95.01
2 This is an appeal preferred by the appellant/State i.e.
original complainant challenging the judgment and order of acquittal,
th
dated 1.12.2000, rendered by the learned 4 Judicial Magistrate,
First Class, Nanded, in Regular Criminal Case No. 541 of 1998,
thereby acquitting the respondent i.e. original accused for the offence
punishable under Section 325 of the Indian Penal Code.
The factual conspectus and shorn of details of the
prosecution case are as follows :-
The complainant, namely Mohammed Shahed s/o Abdul
Shakur returned from his work place to his house, situated at
Lalwadi, Nanded, at about 3.30 to 4.00 p.m. on 26.10.1997 and
cleaned Nali situated in front of his house, since it was blocked.
After cleaning the said Nali, while washing his hands and legs in front
of his house, the accused Iqbal Karim Ansari closed the said Nali by
cutting a Babhul tree. Thereafter he started abusing. Hence, the
complainant's father asked the accused why he closed the said Nali
and why he was abusing. Thereupon, the accused rushed on the
person of complainant's father and also pushed him and rushed on
the person of the complainant and assaulted him by axe on his head
and also on his right hand thumb and little finger, thereby the
complainant sustained bleeding injuries on his right hand finger
3 cra95.01
and on his head. Thereafter the complainant went to the Shiwaji
Nagar police station, Nanded and the police personnel referred him
to the hospital for medical treatment, where doctor treated him.
Thereafter, the police personnel recorded his complaint in the
hospital and offence was registered against the accused under C.R.
No. 180 of 1997 under Sections 325, 323 and 504 of the Indian
Penal Code.
4 During the course of investigation, the police personnel
prepared spot panchanama on 27.10.1997 in presence of panch
witness PW5 Sk. Anwar Khan and same is produced at Exh.27.
Moreover, the alleged weapon i.e. axe was seized under the seizure
panchanama by the police personnel on 30.10.1997. Besides, PW6
Dr. Ramesh Sangavikar on 26.10.1997 gave first aid to injured PW1
complainant Mohd. Shahed at G.G.M. Hospital, Nanded and
thereafter he was referred to Surgical Ward for further management,
as well as he issued the injury certificate, which is produced at Exh.
30.
5 Accordingly, after completion of investigation, charge
sheet was filed against the accused before the court. Thereafter the
Chief Judicial Magistrate framed the charge against the accused on
5.10.1999 at Exh.8 under Section 325 of the Indian Penal Code. The
4 cra95.01
accused pleaded not guilty to the charge and claimed to be tried.
6 To substantiate the charge levelled against the accused,
the prosecution examined as many as 10 witnesses, as mentioned
below :-
PW1 Mohd. Shahed s/o Abdul Shakur, complainant and victim
PW2 Abdul Shakur s/o Abdul Ahmed, father of complainant
as well as victim
PW3 Najmabee w/o Anwar Khan, eye witness
PW4 Mohd. Asif s/o Mohd. Yousuf, eye witness and nephew
of the complainant
PW5 Shaikh Anwar Khan s/o Shaikh Habib Khan, panch to the
spot panchanama (Exh.27)
PW6 Dr.Ramesh s/o Vasantrao Sangvikar,
Medical Officer, G.G.M.Hospital, Nanded, who gave first
aid to the victim complainant Mohd. Shahed and issued
injury certificate (Exh.30)
PW7 Shrihari s/o Pandurang Mundhe, X-ray Technician in
G.G.M. Hospital, Nanded
PW8 Shaikh Anwar s/o Shaikh Farid, panch to seizure
panchanama regarding seizure of axe - turned hostile
PW9 A.S.I. - Tukaram Megha Mundaware, who recorded the
first information report on 26.10.1997
5 cra95.01
PW10 P.S.I. - Kanba Chimnaji Kinarwad, in whose presence
first information report was registered by PW9
Tukaram Mundaware
7 The defence of the accused is that on the date of incident,
the complainant and his relatives assaulted him and he also filed a
case against them, but the complainant falsely implicated the
accused in the present case and the accused has not committed the
alleged offence and claimed to be innocent. However, the accused
neither examined himself on oath nor examined any defence witness
to substantiate his defence.
8 After considering the oral and the documentary evidence
adduced/produced by the prosecution, as well as after considering
the rival submissions advanced by the learned counsel for the
parties, the learned trial Court acquitted the accused for the offence
punishable under Section 325 of the Indian Penal Code by judgment
and order, dated 1.12.2000. Being aggrieved and dissatisfied by the
impugned judgment and order of acquittal, the appellant/State has
preferred the present appeal and prayed for quashment thereof and
urged that the accused be convicted for the offence with which he
was charged.
6 cra95.01
9 In order to deal with the submissions advanced by the
learned counsel for the parties effectively, it is necessary to advert to
the material evidence adduced/produced by the prosecution and in
that context, coming to the deposition of PW1 Mohd. Shahed s/o
Abdul Shakur i.e. the complainant, who has stated that the incident
took place on 26.10.1997 at about 3.30 to 4.00 p.m. in front of his
house, where Nali was situated, which was closed, and therefore, he
cleaned it and after cleaning the said Nali, while he was washing his
hands and legs in front of his house, the accused Iqbal Karim Ansari
closed the said Nali by cutting down Babhul tree and started abusing
the complainant. Hence, the father of the complainant asked the
accused why he closed the Nali and the reason for abusing.
However, the accused rushed upon his person and pushed him and
also rushed on the person of the complainant and assaulted him by
Kurhadi on his head and also his right hand thumb and little finger,
due to which he sustained injury on his head, as well as bleeding
injuries on his hand.
10 Thereafter, the complainant went to the police station and
police personnel referred him to the hospital for medical treatment
and the doctor treated him and operated him, and accordingly, the
complainant was in hospital for about 13 days. Thereafter, the police
7 cra95.01
personnel recorded his complaint in the hospital which is produced at
Exh. 22, as well as he identified the alleged weapon i.e. Kurhadi,
which is marked as Article 1.
11 During cross-examination, he admitted that accused is
related to him i.e. accused is son of his uncle and his house is
situated towards eastern side of the house of the complainant and
there is one cement public road. He also stated that he is married,
but his wife resides at her parent's house and she has filed case
against him under Section 498-A of the Indian Penal Code. He
further stated that he was in the hospital for 13 days. The accused
put his case to the complainant that he assaulted the accused and
when the accused was digging the pitch and cleaning the Nali, the
complainant fell and sustained injury and has taken the disadvantage
of it and filed false case against the accused, but same was denied
by him. He also stated that the axe bore the blood stains.
12 Considering the contents of the complaint and
examination-in-chief of the complainant, he stated that he told the
police personnel that the incident took place from 3.30 to 4.00 p.m.
on the day of the incident, but admitted that the said time is not
recorded in the complaint, amounting to omission therein and
improvement in his examination-in-chief. Moreover, there is
8 cra95.01
omission in respect of assault upon his father in the first information
report and improvement in his examination-in-chief. Moreover,
suggestion was given to him that he had illicit relations with
Najmabegum, but same was denied by him. It was also suggested to
him that he assaulted the accused and filed the false case against
him for the reason that he should not prosecute him, but same was
denied by him. It was further suggested to him that he was not
hospitalised for 13 days, but same was also denied by him.
Suggestion was also given to him that he filed the false case against
the accused in collusion with his family members, but same was also
denied by him.
13 That takes me to the testimony of PW2 Abdul Shakur i.e.
father of the complainant, alleged to be the eye witness to the
occurrence of the incident, who stated that on 26.10.1997 at about
3.00 to 3.30 p.m. he was in his house and his son Mohd. Shahed
was cleaning the drainage. At that time, the accused came out of
house and cut down the tree. Hence, PW2 Abdul Shakur asked the
accused why he cut down the tree, as it closed the Nali. Thereupon
the accused abused him and pushed him, due to which he fell on the
surface and the accused assaulted him on his back. At that time,
son of PW2 Abdul Shakur, namely Shahed i.e. the complainant came
towards him. The accused assaulted him by axe (Kurhadi) and first
9 cra95.01
blow thereof was given on head and the second blow was inflected
on his thumb of the hand and thereby Shahed became unconscious
and was feeling giddiness. The nearby people had gathered due to
hue and cry, and therefore, the accused ran away. Asif had gone to
the police station and police personnel came on the spot and they
took his son in their vehicle towards the police station and thereafter
he was referred to the hospital. PW2 Abdul Shakur identified Article
No.1 as well as the accused in the court.
14 In cross-examination, he stated that the accused is son of
his brother. He also stated that the accused assaulted him on his
back, and therefore, he went to the hospital and took the treatment.
He further stated that police personnel recorded his statement on the
second day and on the day of the incident he only narrated the police
about the assault. However, he could not assign any reason why the
police personnel has not recorded in his statement that the accused
obstructed the Nali and the accused assaulted him on his back,
amounting to omission in his police station and improvement in his
testimony. He also admitted that the accused has filed case against
them in the court. It was also suggested to him that the accused was
beaten and he would file case against them, and therefore, before
that, the present case was filed falsely, but same was denied by him.
Suggestion was also given to him that he was deposing falsely that
10 cra95.01
the accused has beaten his son by axe and on his back, but same
was denied by him.
15 Coming to the deposition of PW3 Najmabee i.e. the
alleged eye witness, who stated that there was quarrel on
26.10.1997 in between 3.30 to 3.45 p.m. between the accused Iqbal
and the complainant Shahed and at that time the accused has closed
the Nali by cutting the tree and complainant Shahed asked him why
he closed the Nali, due to which wastage accumulates. However,
the accused pushed the father of the complainant PW2 Abdul
Shakur. Hence, the complainant asked him why accused pushed his
father. Thereupon, the accused assaulted Shahed by axe on his
head and gave another blow thereof on the right thumb of the
complainant, and thereby blood started oozing out of the head of the
complainant and he became unconscious. At that time, Asif went to
the police station. She further stated that many people were present
there. She identified the axe i.e. Article No.1 in the court.
16 In cross-examination, she stated that name of his
husband is Anwar Khan s/o Habib Khan Pathan. She also admitted
that the accused has filed case against them. She knew the
complainant Shahed since last 8 to 10 years. She further stated that
she has no relations with the complainant and his family and at the
11 cra95.01
same time she stated that her husband is not on sitting terms with
the family of the complainant and there are no talking terms. She
admitted that on the earlier day, she came to the court for evidence
with the complainant and his family members and on the date of
evidence also she came with them. She further stated that when the
complainant was being beaten by the accused, she went to separate
them. However, she did not receive any injury at that time. She
separated the complainant and accused by pushing both of them.
She further stated that the complainant has wife, who resides at her
parental house. She further stated that she does not know whether
the wife of the complainant has filed case against her. However,
police personnel recorded her statement on 27th. Omissions were
brought on record in respect of cutting tree by the accused and
putting it on Nali thereby closing it and also in respect of
unconsciousness of Shahed i.e. the complainant, amounting to
improvement in her testimony. However, she stated that Baniyan
and Pant of Shahed were stained with blood, when he received head
injury. However, she did not receive any blood stains on her person.
It was also suggested to her that since there are relations of her with
the complainant, his wife left him, but she denied the same. It was
also suggested to her that there being relations between herself and
the complainant, she was deposing falsely, but same was also
denied by her. Suggestion was also given to her that she kicked on
12 cra95.01
the chest of the accused and after 2-3 days pelted stones on the
house of the accused, but same was denied by her. Suggestion was
also given to her that she deposed falsely about separating the
quarrel of accused and the complainant, but same was also denied
by her.
17 Turning to the deposition of next eye witness i.e. PW4
Mohd. Asif, who has deposed in his deposition that he had gone to
the house of his grand mother at Lalwadi, Nanded to see her on
26.10.1997 and at about 3.00 to 3.30 p.m. his maternal uncle
Shahed went to bring the water from the tap. At that time he was
standing in front of house of his grand mother and noticed that his
maternal uncle i.e. complainant Shahed was cleaning the Nali. At
that time, the accused was cutting tree. Therefore, his maternal uncle
i.e. Shahed asked the accused not to cut the tree as it causes
closure of Nali. There were abuses in between them and the
accused has abused the complainant. At that time, his grand father
i.e. PW2 Shakur asked the accused why he was abusing.
Thereupon, the accused pushed him and thereby PW2 Shakur fell
down.
18 Moreover, the accused has also assaulted the
complainant Shahed by axe on his head and the accused has given
13 cra95.01
second blow of axe on the right hand thumb of the complainant, due
to which some part of the thumb was separated and there was
bleeding injury and complainant Shahed sustained giddiness.
Hence, he was shifted to the police station and thereafter police
personnel referred him to the hospital. He identified the accused as
well as identified the axe in question i.e. Article No.1 in the court.
In cross-examination, suggestion was given to him that
he was depositing falsely that accused assaulted by Article No.1 and
his thumb was separated, but same was denied by him. It was also
suggested to him that he was deposing falsely that accused was
cutting the tree and he has pushed to his grand father, but same was
also denied by him. It was further suggested to him that he deposed
falsely that due to assault by the accused, the complainant sustained
giddiness, but same was denied by him. However, he admitted that
on the earlier day, he came to the court along with his maternal uncle
i.e. the complainant.
20 That takes me to the testimony of PW6 Dr. Ramesh, who
stated that on 26.10.1997, he was attached to the GGM Hospital,
Nanded and Mohd. Shahed was referred to him under requisition
letter from police station, Shivajinagar, Nanded at about 5.15 p.m.
Accordingly, he examined him and found following injuries :
14 cra95.01
(i) Auto amputation distal part of right thumb grievous in
nature caused within 24 hours by hard and blunt object.
(ii) Contused lacerated wound ½ x ½ x ½ cm. in
margin on the right ring finger, simple in nature
caused within 24 hours by hard and blunt object.
(iii) Contused lacerated wound ½ x ½ ½ cm. on
right temporal region of head of simple in nature
caused by hard and blunt object within 24 hours.
He also stated that he provided first aid to the injured and then sent
him to the Surgical Ward for further management. He also stated that
the said injured i.e. the complainant was hospitalized from
26.10.1997 to 7.11.1997 as indoor patient in Surgical Ward. His X-
ray was drawn, which disclosed that the distal part of the thumb was
broken and the other injuries were simple in nature and he does not
found any sign of fracture injury. He further categorically stated that
the injuries found on the person of injured Shahed are not possible
due to blow of Kurhadi i.e. Axe. He further categorically stated that
the injuries found on the person of complainant are possible by way
of hard and blunt object i.e. any hard and blunt object having no
sharp edge. He also stated that injury can be possible with a very
blunt axe having no edge. He issued the injury certificate, which is
15 cra95.01
produced at Exh. 30.
21 During cross-examination, he admitted that it is correct to
suggest that injuries caused by axe are always spindle shape,
regular in margin, as well as they are incised wounds. He also
stated that he has not found any such type of injury, which can be
caused by a weapon like an axe on the person of injured Shahed.
Hence, he opined that the injuries are caused by hard and blunt
object and that even the blunt axe can cause incised wound regular
in margin. He admitted that the paper in which X-ray plates are
wrapped shows the date as 21.10.1997 i.e. the day on which X-ray
was drawn, as well as the signature of Radiologist is also of
21.10.1997. He also admitted that distal part of the thumb is very
remote part of the thumb. He further stated that the injuries found on
the person of injured Shahed are possible when a person while
working falls down on the ground and while cleaning Gatar and
removing the garbage.
22 Coming to the deposition of PW9 ASI Tukaram
Mundaware, who stated that on 26.10.1997 he was working as ASI
at Shivajinagar police station and between 3.00 to 3.30 afternoon
one person came at the police station, who had sustained injuries on
his head. His statement was recorded by PW9 Tukaram as per his
16 cra95.01
version and crime was registered and thereafter the complainant was
referred to the Civil Hospital and investigation was handed over to
Beat Jamadar Pathan.
23 In cross-examination, he stated that while giving
statement, the complainant has stated that incident had taken place
from 3.00 to 3.30 p.m., but he has stated that incident took place
between 3.30 to 4.00 p.m. on the day of incident, amounting to
discrepancy in the timing. He also admitted that P.S.O. always writes
the complaint. Hence, suggestion was given to him that he has no
authority to write the complaint, but same was denied by him.
Suggestion was also given to him that he wrote the false complaint
against the accused with the collusion of the complainant, but same
was denied by him.
24 On the afore said background of oral and documentary
evidence adduced/produced by the prosecution, the learned
Additional Public Prosecutor canvassed that PW1 complainant,
namely Mohd. Shahed examined himself and narrated the
occurrence of the incident, which was supported by the testimony of
his father PW2 Abdul Shakur, who was present there and both the
said testimonies involve the accused in the crime. It is also
canvassed that PW3 Najmabee is the independent eye witness to
17 cra95.01
the occurrence of the incident and her testimony categorically
connects the accused with the crime. Moreover, PW4 Mohd. Asif i.e.
nephew of the complainant also witnessed the occurrence of the
incident and he is also eye witness to it, who narrated the incident in
detail, which, consequently, establishes the nexus between the crime
and the accused. Accordingly, it is submitted that the testimonies of
the complainant i.e. PW1 Mohd. Shahed, his father PW2 Abdul
Shakur, coupled with testimonies of independent eye witnesses
PW3 Najmabee, as well as PW4 Mohd. Asif clinches the issue in
controversy and connects the accused with the alleged crime.
25 Moreover, it is argued that the evidence of PW6 Dr.
Ramesh Sangvikar and the injury certificate (Exh.30) corroborates
with the ocular evidence of the afore said witnesses regarding the
injuries sustained by the complainant i.e. auto amputation of thumb.
Moreover, the learned Additional Public Prosecutor submitted that
the complainant Mohd. Shahed was hospitalised for about 13 days
i.e. from 26.10.1997 to 7.11.1997 and the injury no.1 sustained by
the complainant Mohd. Shahed i.e. distal part of the thumb auto
amputation is the grievous injury, which attracts Section 325 of the
Indian Penal Code. It is also canvassed by the learned Additional
Public Prosecutor that the incriminating Article No.1 i.e. the weapon
axe was seized under the panchanama and it has come in the
18 cra95.01
evidence that there was enmity between the accused and the
complainant and cross-complaints were filed by them against each
other, which itself is the motive behind the afore said assault upon
the complainant. It is further canvassed by the learned Additional
Public Prosecutor that the testimonies of PW2 Abdul Shakur i.e.
father of the complainant eye witness and PW4 Mohd. Asif, who is
nephew of the complainant and also an eye witness, cannot be
discarded as they are the relatives and interested witnesses, since
the said depositions inspire the confidence and connect the accused
with the crime. Besides, it is argued that although PW6 Dr. Ramesh
stated in his deposition that injuries found on the person of the
injured Shahed are possible when a person while working falls down
on the ground while cleaning the gutter and removing the garbage,
but there is no evidence on record to show that the victim sustained
injury due to accidental fall, and therefore, it is submitted that the
said statement made by PW6 Dr. Ramesh is of no aid and
assistance to the case of the accused.
26 In the circumstances, it is submitted that the evidence on
record adduced/produced by the prosecution inspires the confidence
that the incident occurred and victim sustained grievous injury at the
hands of the accused caused by axe i.e. deadly weapon, and hence,
there is no incriminating evidence against the accused to hold him
19 cra95.01
guilty, and therefore, it is submitted that the present appeal deserves
to be allowed by quashing and setting aside the impugned judgment
and order of acquittal and the accused is required to be convicted for
the offence punishable under Section 325 of the Indian Penal Code.
27 Learned advocate Shri Sachin Bhise holding for Shri S.B.
Bhapkar, learned counsel for the respondent/accused countered the
said argument and opposed the present appeal vehemently and
submitted that although PW3 Najmabee and PW4 Mohd. Asif are
pretended and alleged to be the eye witnesses by the prosecution,
pertinently, their presence is not reflected in the first information
report at the time of occurrence of the incident. In the said context, it
is submitted that, in fact, PW4 Mohd. Asif gave first intimation to the
police personnel, which should have been treated as the first
information report, but the prosecution has withheld the said
intimation given by PW4 Mohd. Asif to police personnel and has not
produced it on record, and hence, the alleged first information report
lodged by the complainant cannot be construed as the first
information report in the real sense and the said defect goes to the
root of the matter and hampers the case of the prosecution.
28 As regards the seizure of the alleged weapon i.e. axe, it is
submitted that panch witness PW8 Shaikh Anwar has turned hostile
20 cra95.01
and the seizure of the said axe allegedly at the instance of the
accused has not been proved and established by the prosecution,
and hence, alleged seizure of the said axe under the seizure
panchanama has not been established, and therefore, same cannot
be construed as incriminating piece of evidence against the accused.
29 It is further canvassed that it is the matter of record that
although the alleged first information report was lodged on
26.10.1997, copy thereof was forwarded before the court by the
police personnel on 3.11.1997 i.e. after six to seven days delay and
the prosecution has not explained the said delay, which creates
doubt about the case of the prosecution.
30 It is further canvassed that it has come in evidence that
the accused also filed cross complaint against the complainant, and
apparently, there is enmity between the parties i.e. the complainant
and the accused, and therefore, possibility of filing present complaint
by the accused falsely cannot be ruled out. Moreover, it is submitted
that the prosecution has not examined the investigating officer for the
reasons best known to the prosecution.
31 As regards the medical evidence, it is argued by the
learned counsel for the respondent that PW6 Dr. Ramesh has
21 cra95.01
categorically stated in his deposition that the injuries found on the
person of the victim complainant are not possible by blow of Kurhadi
i.e. axe and the injuries found on the person of the complainant are
possible by way of hard and blunt object i.e. any hard and blunt
object having no sharp edge thereto, and hence, it is submitted that
the said statement of PW6 Dr. Ramesh clinches the issue in
controversy and clarifies that the injury sustained by victim Shahed
has not been caused by the axe i.e. Article No.1 and the prosecution
has failed to establish the nexus between the alleged weapon axe
and the injury sustained by the victim. Moreover, it is also
canvassed that the injuries disclosed in the M.L.C. Certificate (Exh.
30) are not in consonance with the testimonies of the complainant
PW1 Shahed and the alleged eye witnesses, and hence, suspicion
is created in respect of the prosecution case.
32 Accordingly, learned counsel for the respondent
supported the impugned judgment and order of acquittal recorded by
the learned Trial Court and submitted that the view adopted by the
learned Trial Court while acquitting the respondent/accused, after
scrutinising and appreciating the evidence is a possible view, and
there is no glaring mistake, and hence, no interference therein is
called for in the present appeal and urged that present appeal be
dismissed.
22 cra95.01
33 I have perused the oral and documentary evidence
adduced/produced by the prosecution, as well as perused the
medical evidence adduced/produced by the prosecution and
considered the rival submissions advanced by the learned counsel
for the parties anxiously, and at the out set, although prosecution
pretended that PW3 Najmabee and PW4 Mohd. Aisf are the eye
witnesses to the occurrence of the incident, but, pertinently, their
presence is neither reflected in the first information report lodged by
the complainant PW1 Mohd. Shahed at the time of occurrence of the
incident, nor even disclosed in the testimony of PW1 Mohd. Shahed
and his father PW2 Abdul Shakur, and therefore, suspicion is created
in respect of presence of the said alleged eye witnesses i.e. PW3
Najmabee and PW4 Mohd. Asif at the time of occurrence of the
incident, and hence, the testimonies of the said witnesses i.e. PW3
Najmabee and PW4 Mohd. Asif come under cloud of suspicion.
34 Keeping in mind the said aspect and coming to the
depositions of PW1 complainant Mohd. Shahed and PW2 his father
Abdul Shakur, it is material to note that although PW2 Abdul Shakur
is alleged to be the eye witness to the occurrence of the incident,
there are variances in the testimonies of PW1 Mohd. Shahed and his
23 cra95.01
father PW2 Abdul Shakur on the material points, since PW2 Abdul
Shakur stated in his deposition that the accused abused him and
pushed him, due to which he fell on the surface and accused
assaulted him on his back, but the testimony of PW1 Mohd. Shahed
is silent in respect of falling of his father on the surface and assault
upon his father by the accused on back. Moreover, PW2 Abdul
Shakur stated in his deposition that at the time of incident, due to hue
and cry, people were gathered, but there is no whisper in that
respect in the testimony of PW1 Mohd. Shahed i.e. the complainant.
Moreover, there is vital omission in the testimony of PW1
complainant Mohd. Shahed in respect of the very time of the
occurrence of the incident, which also diminishes the credibility of the
testimony of PW1 Mohd. Shahed.
35 Moreover, it is also important to note that although the
alleged first information report was lodged on 26.10.1997, the copy
thereof was forwarded to the court by the police personnel on
3.11.1997 i.e. after 6 to 7 days delay and the prosecution has not
explained the said delay and the same creates doubt about the
prosecution case, and there is substance in the submission made by
the learned counsel for the respondent/accused in that respect.
36 Moreover, it is also material to note that PW2 Abdul
24 cra95.01
Shakur stated in his deposition that at the time of incident Asif had
gone to the police station and police personnel came there and they
took away his son i.e. complainant PW1 Mohd. Shahed to the police
station, and thereafter he was referred to the hospital. However, the
deposition of PW1 Mohd. Shahed complainant himself is silent in that
respect and he stated that after sustaining injuries, he went to the
police station and police personnel referred him to the hospital.
However, his testimony is silent in respect of intimation given by
PW4 Mohd. Asif at the police station. However, as stated by PW2
Abdul Shakur, PW4 Mohd. Asif gave first intimation to police
personnel, and apparently, there is substance in the submission
made by the learned counsel for the accused that the said intimation
should have been treated as the first information report, but the
prosecution withheld the said intimation and same has not been
produced on record, and therefore, the alleged first information report
lodged by the complainant cannot be construed as first information
report in real sense and the said defect goes to the root of the matter
and hampers the case of the prosecution.
37 As regards the seizure of the alleged weapon i.e. the axe,
panch witness PW8 Shaikh Anwar has turned hostile, and therefore,
the seizure of the said axe allegedly at the instance of the accused
has not been proved and established by the prosecution, and hence,
25 cra95.01
same cannot be construed as incriminating piece of evidence against
the accused.
38 Coming to the medical evidence, it is material to note that
PW2 Dr. Ramesh has categorically stated in his deposition that the
injuries found on the person of the victim complainant are not
possible by blow of Kurhadi i.e. axe and the injuries found on the
person of the complainant are possible by way of hard and blunt
object i.e. any hard and blunt object having no sharp edge thereto,
and hence, it is submitted that the said statement of PW6 Dr.
Ramesh clinches the issue in controversy and clarifies that the injury
sustained by victim Shahed has not been caused by the axe i.e.
Article No.1 and the prosecution has failed to establish the nexus
between the alleged weapon axe and the injury sustained by the
victim.
39 Moreover, on perusal of the M.L.C. Certificate (Exh.30)
and the testimonies of PW1 complainant Mohd. Shahed and PW2 his
father Abdul Shakur, it is apparent that the injuries disclosed in the
said certificate and the allegations in respect of injuries sustained by
PW1 complainant Mohd. Shahed, as stated by him and PW2 Abdul
Shakur, are not in consonance with each other, and hence,
suspicion is created in respect of the prosecution case.
26 cra95.01
40 It is further material to note that the complainant PW1
Mohd. Shahed admitted in his cross-examination that there are
houses of many people neighbouring his house, but it is significant to
note that the prosecution has not examined any independent witness
to substantiate the charges levelled against the accused and
whatever witnesses examined by the prosecution regarding
occurrence of the incident are the relatives of the complainant, since
PW2 Abdul Shakur is father of the complainant and it is also alleged
that there were relations between the complainant and the alleged
eye witness PW3 Najmabee and PW4 Mohd. Asif is the nephew of
the complainant, and therefore, the fact remains that the prosecution
examined the interested witnesses in respect of occurrence of the
incident and even there are discrepancies and infirmities in the said
evidence, as mentioned herein above.
41 Besides, it has come in the evidence that the accused has
filed cross complaint against the complainant and it appears that
there is enmity between the parties i.e. the complainant and the
accused, and hence, possibility of filing present complaint by the
accused falsely cannot be ruled out. It is also curious to note that the
prosecution has not examined the investigating officer for the
reasons best known to the prosecution.
27 cra95.01
42 Having the comprehensive view of the matter, it is amply
clear that there are infirmities, discrepancies and deformities in the
prosecution case and it does not inspire confidence and there
cannot be two opinions that the prosecution has failed to prove and
establish the charges levelled against the accused beyond
reasonable doubt, and hence, I am not inclined to accept the
submissions advanced by learned Additional Public Prosecutor for
appellant. Moreover, after scrutinizing and analysing the evidence on
record, the view adopted by the learned Trial Court while acquitting
the accused is a possible view and same does not appear to be
perverse, and therefore, no interference therein is called for in the
present appeal, and consequently, present appeal fails, and
therefore, same deserves to be dismissed and the judgment and
order of acquittal of respondent/accused, recorded by the learned
Trial Court, deserves to be confirmed.
43 In the result, present appeal, which is sans merits, stands
dismissed and the judgment and order of acquittal of
respondent/accused, recorded by the learned Trial Court is
confirmed.
(SHRIHARI P. DAVARE),
JUDGE.
dbm/cra95.01
28 cra95.01
