State Of Maharashtra vs Syed Umar Syed Bala And 2 Others
2017 Latest Caselaw 5918 Bom

                                                    1                             Judg. 140817 apeal 188.03.odt 

                          IN THE HIGH COURT OF JUDICATURE AT BOMBAY :
                                    NAGPUR BENCH : NAGPUR.

                                            Criminal Appeal No.188 of 2003

                 The State of Maharashtra.                                               ....  Appellant.

                                                            -Versus-

              1] Syed Umar Syed Bala, 
                 Aged about 55 years,

              2] Syed Ijaj Syed Umar, 
                   Aged about 24 years,

              3] Syed Faiaj Syed Umar,
                   Aged about 20 years,
                   All r/o Baidoura Akola, Tq. and District Akola.           ....  Respondents.
              --------------------------------------------------------------------------------------------------
              Mrs. S.Z. Haider, Additional Public Prosecutor for State.
              Mr.   Pushkar Ghare, Counsel for respondents.
              --------------------------------------------------------------------------------------------------
                                                               Coram : Mrs. Swapna Joshi, J.

th Dated : 14 August, 2017.

ORAL JUDGMENT

This appeal has been preferred by the appellant State against the

judgment and order dated 05-12-2002 delivered in Regular Criminal

Appeal No.49 of 2001 by the learned Joint District Judge and Additional

Sessions Judge, Akola, thereby acquitting the respondents of the offences

punishable under Section 324 read with Section 34 of the Indian Penal

Code. The learned Judicial Magistrate First Class had convicted the

2 Judg. 140817 apeal 188.03.odt

accused by his judgment and order dated 11-05-2001 in Regular Criminal

Case No.239 of 1999 and sentenced them to suffer rigorous imprisonment

for 18 months each and to pay a fine of Rs.1500/- each, in default to

suffer rigorous imprisonment for six months each.

2] I have heard Mr. Pushkar Ghare, the learned Counsel for the

respondents and Mrs. S.Z. Haider, the learned Additional Public

Prosecutor for the appellant-State. I have carefully gone through the

record of the case.

3] The brief facts of the prosecution case are that;

The complainant (PW-4) was running a furniture shop at Janata

Bazar area, Akola. He had taken the said shop on rent from Sayyed

Umar Sayyed Bala (accused no.1). The accused no.1 was insisting the

complainant to vacate the said shop. On that count, the dispute was

going on between the complainant and accused no.1 and for the said

reason, their relations were strained. On the date of incident i.e. on

24-03-1999 at about 8.30 pm, one Budhan Khan (PW-2) and his son

Sajid Khan (PW-3) were working in the said shop. Complainant (PW-4)

came to the shop and inquired with Sayyed Khan and Budhan Khan,

whether any customers had come to the shop. Suddenly, Ijaj Khan

(accused no.2) came from his behind and he dealt a blow of a wooden

rafter on his head. Due to this, he sustained a wound to his head. He

also sustained a bleeding injury to the finger of his left hand. At that time,

Sayyed Umar Sayyed Bala (accused no.1), Sayyed Ijaj (accused no.2),

Sayyed Faiyyaj (accused no.3) and one more person along with him

3 Judg. 140817 apeal 188.03.odt

(unknown person) came and started assaulting him by means of kicks

and fist blows. The complainant was brought to the Police Station. His

complaint was reduced into writing. Thereafter, the complainant was

taken to the hospital.

4] On the basis of the said complaint, the offence was registered.

The necessary investigation was carried out by the Investigating Officer.

The charge-sheet was filed. The learned Judicial Magistrate First Class

after going through the evidence, recorded the conviction of the accused

persons as aforesaid.

5] Being aggrieved by the judgment delivered by the learned Judicial

Magistrate First Class, Regular Criminal Appeal No.49 of 2001 was

preferred by all the accused persons before the learned Joint District

Judge and Additional Sessions Judge, Akola. After hearing the

prosecution as well as the defence, he acquitted the accused persons as

aforesaid.

6] I have carefully gone through the record of the case and the

impugned judgment and order. The learned A.P.P. contended that the

judgment and order passed by the learned trial Judge is illegal and

perverse in as much as the learned Judge has not taken into

consideration the testimony of the injured witnesses as well as the eye

witnesses to the incident. The learned Counsel for the

respondents/accused Mr. Ghare urged that the learned Additional

Sessions Judge has rightly acquitted the accused of the offence, as

there were material discrepancies in the testimony of injured witness as

4 Judg. 140817 apeal 188.03.odt

well as the other alleged eye witnesses. He submitted that as there was

dispute between the witnesses and the accused persons, for the reason

that the witnesses refused to vacate the shop belonging to the accused,

and the accused insisted for vacating it, a false case has been lodged

against the accused.

7] The prosecution heavily relied upon the testimony of the

complainant (PW-4) and the alleged witnesses Budhankhan (PW-2). So

far as the testimony of PW-4 is concerned, he has deposed before the

Court that, on 24-03-1999 at about 8.30 pm he came to his shop. He

asked his son Sajid Khan and brother Budhan Khan whether any

customer had come to the shop. Suddenly, Sayyed Ijaj (accused no.2)

came from his behind and gave a blow of a wooden rafter on his head.

Due to which he received injury to his head. He received the injury to his

finger of his left hand. Thereafter, the remaining three accused persons

came to that place and they assaulted him by means of kicks and fist

blows. Then PW-4 fell down. His brother Budhan Khan took him to the

Police Station. The Police recorded his complaint (Exhibit-38). The PW-1

was then taken to the Government hospital. He was admitted in the said

hospital for 15 days. The PW-1 identified the wooden rafter before the

Court as 'Article A'.

8] On careful scrutiny of PW-1, it is noticed that, there is discrepancy

in the testimony of PW-4 as compared to his complaint Exhibit-38 with

regard to the weapon used in the alleged offence. According to PW-4, he

was assaulted by wooden rafter on his head and he also received injury to

5 Judg. 140817 apeal 188.03.odt

the finger of his left hand, which was a bleeding injury. Whereas the

complaint (Exhibit-38) depicts that, all the accused persons assaulted on

his head with sticks over the issue of vacating the shop, due to which he

sustained injury on his head. Significantly, in his examination-in-chief he

has made an improvement, that the other accused had come and

assaulted him by means of kicks and fist blows. He has also made an

improvement with regard to the fact that he had received a blow of

wooden rafter on his head. He failed to assign any reason as to why

these facts were not mentioned in his report Exhibit-38. The PW-4

clarified that he knows the difference between 'stick' and 'rafter'. It is not

clear as to why PW-1 has stated about the fact that he received the injury

by means of 'rafter' in his evidence before the Court. The PW-4, however,

stated that as it was night time and there was darkness, he could not

know as to who had assaulted him. On careful scrutiny of the testimony

of PW-4, it is noted that, he has completely changed his version before

the Court as compared to his complaint Exhibit-38 and he is not found to

be a reliable and trustworthy witness. If the testimony of PW-2 is

compared to the testimony of PW-4, it is noticed that, PW-2 has deposed

before the Court in a manner that when he was doing work in his shop,

his brother Sayyed Khan came to the shop. He asked him and his

nephew Sajid Khan whether any customer had come to the shop. At that

time, Sayyed Ijaj (accused no.2) came to that place and he dealt a blow

of wooden rafter on the head of Sayyed Khan. The other accused came

there and they assaulted Sayyed Khan by means of kicks and fists, due

6 Judg. 140817 apeal 188.03.odt

to which, Sayyed Khan sustained injury on his head, which was a

bleeding injury. It is pertinent to note that 'Article A' is a leg of cot and

there is difference between the 'rafter' and a 'leg of cot'. It appears that

the weapon before the Court was a 'leg of cot' and not a 'rafter' as

described by the witness.

9] According to Sajid Khan (PW-3), on the date of incident, at about

8.00 pm, he was in the shop. His father came to the shop and asked him

whether any customer had come. At that time, Sayyed Ijaj (accused no.2)

came to the place and he picked up a wooden rafter and dealt its blow on

his father's head. His father sustained a wound. Thereafter, Sayyed,

Ijaj, Faiyaj and Sajjad came to the place and they hit to his father with

kicks and fists. From the testimony of PW-3 it is noticed that, he has

made an improvement in his evidence. At one place, he has stated that

the accused assaulted his father by means of wooden rafter and

thereafter by changing his version he has stated that, thereafter, Sayyed

Ijaj (accused no.2), Faiyaj and Sajjad came to that place and hit his father

by means of kicks and fists. It is not clear from the testimony of PW-3 as

to how after assaulting his father by Sayyed Ijaj (accused no.2) by means

of rafter, again he came along with Sayyed, Faiyyaj and Sajjad and

assaulted his father by means of kicks and fists. In view thereof, he is

not found to be a reliable and trustworthy witness.

10] On careful scrutiny of the testimony of PW-2 and PW-3, it is noticed

that, there are various material discrepancies in their testimony before the

Court and their testimony do not inspire confidence.

                                                     7                             Judg. 140817 apeal 188.03.odt 

             11]      The investigating agency had carried out   the investigation.   The 

spot panchanama was drawn. The leg of cot was taken charge from the

place of incident which certainly cannot be termed as 'wooden stick' or

'rafter'.

12] As far as the medical evidence is concerned, it is significant to note

that, the injury certificate of PW-4 was not produced on record by the

investigating agency. In view thereof, it is not clear, as to what were the

exact injuries received by PW-4 at the hands of the accused persons. No

doubt, the prosecution examined Medical Officer (PW-7) Dr. Milind

Choukhande. The PW-7 deposed that he had examined Sayyed Khan

on 29-03-1999 at General Hospital, Akola. He advised 'X- ray' of his

skull and left hand. No fracture was found to the skull of Sayyed Khan

Amir Khan but there was a fracture of proximal phalynx of left hand middle

finger. Thereafter, he referred the patient to orthopedic surgeon. The

PW-7 issued Discharge Card (Exhibit-48) of the patient. According to

him, the injury to the finger of the patient can be caused by hard and blunt

object. During the cross examination the PW-7 failed to state as to who

had treated the patient from 24-03-1999 to 29-03-1999. Thus, the Injury

Certificate of PW-4 was not produced by the concerned Medical Officer.

So far as the fracture is concerned, he failed to state whether it was a

simple or compound fracture. He stated that it was possible due to fall

from motorcycle and it could also be a self inflicted. It is worthy to note

that, the PW-7 examined the patient five days after the incident. In view

thereof, he could not state as to what was the exact injury sustained by

8 Judg. 140817 apeal 188.03.odt

the victim. So far as the fracture to the finger of the complainant is

concerned, the complainant has nowhere stated in his complaint

(Exhibit-38) about the injury received to his finger. In view thereof, it

cannot be said that PW-1 received the said injury during the incident

which allegedly occurred on 24-03-1999. Significantly, apart from these

three injuries the other injuries were not examined by PW-7. In view of the

facts and circumstances, the learned Sessions Judge has rightly

disbelieved the evidence led by the prosecution and acquitted the accused

persons of the offence punishable under Section 324 read with Section 34

of the Indian Penal Code.

13] I do not find any illegality or perversity in the judgment passed by

the learned learned Sessions Judge. It is well settled principle of law that

in exercise of its appellate jurisdiction particularly in appeal against

acquittal, it is not open to this Court to substitute its own view with a view

taken by the lower Court, unless the view taken by the lower Court is

illegal, perverse or against the principle of law.

14] There are no sufficient grounds made out by the appellant/State to

interfere with the impugned judgment and order. In these circumstances,

the appeal deserves to be dismissed and accordingly it is dismissed.

JUDGE

Deshmukh