Bombay High Court
State Of Mah. Thr. Pso Pusad vs Usmanali Wajirali And 3 Others on 30 March, 2017
Bench: B.P. Dharmadhikari
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.
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Shri A.S. Fulzele, Add.P.P. for appellant.
Shri A. K. De, Advocate for respondents.
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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,
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.
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
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
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.
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
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
