The State Of Mah.Thr.Pso Amravati vs Abd.Kalim Abdul Rauf And 7 Others
2017 Latest Caselaw 2403 Bom

APEAL 652/05                                       1                          Judgment


     IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
               NAGPUR BENCH, NAGPUR.
                   CRIMINAL APPEAL NO. 652/2005 
The State of Maharashtra,
Through Police Station Officer,
P.S. Anjangaon Surji, Distt. Amravati.                                       APPELLANT

                                   .....VERSUS.....

1.     Abd.Kalim s/o Abdul Rauf,
       Aged about 35 Years.
2.     Abd.Salim s/o Abdul Rauf,
       Aged about 38 Years.
3.     Abd.Khalil s/o Abdul Rauf,
       Aged about 32 Years.
4.     Abd.Jamil s/o Abdul Rauf,
       Aged about 28 Years.
5.     Skh.Arif Skh.Isaque.                      (DEAD)
6.     Abd. Anis s/o Abdul Kayyum,
       Aged about 25 Years.
7.     Abd. Salim s/o Abdul Salam,
       Aged about 35 Years.
8.     Abd. Aabu s/o Abdul Salam,
       Aged about 35 Years.
All R/o Anjangaon Surji, Distt. Amravati.                              RESPONDE
                                                                                NTS

       Shri B.M. Lonare, Additional Public Prosecutor for the appellant.
Shri D.S. Lambat, counsel (appointed) for the respondent nos.1 to 4 and 6 to 8.

                       CORAM : B.R. GAVAI  AND  N.W. SAMBRE, JJ.

                                       08  TH         MAY  ,       2017.
                       DATE    :
                        

ORAL JUDGMENT   (PER : N.W. SAMBRE, J.)

The Ad-Hoc Additional Sessions Judge, Achalpur, vide

judgment and order, dated September 06, 2005, ordered acquittal

of the respondents-accused for the offences punishable under

APEAL 652/05 2 Judgment

Sections 147, 148, 307 read with Section 149 of the Indian Penal

Code. As such, present appeal against acquittal by the State.

2. It is the case of the prosecution that on 12.02.1996, at

about 6.15 p.m., when P.W.1-Irshad and P.W.2-Naim, were

proceeding to their house, the accused persons had attacked them

in front of saw-mill of Jumbde by means of Farshi and iron pipes.

3. The victims were shifted to the Primary Health Centre

and thereafter were referred to the General Hospital, Amravati.

Complainant-Naim reported the matter resulting the registration of

the offence in question punishable under Sections 307, 147, 148

and 149 of the Indian Penal Code.

4. After the accused were charge-sheeted, they were

acquitted of the above crime. Therefore, this appeal is preferred by

the State.

5. The learned Additional Public Prosecutor would urge

that the Sessions Court committed an error while acquitting the

accused as the evidence of the victims, who are eye witnesses to the

APEAL 652/05 3 Judgment

incident is disbelieved without any reasons. So as to substantiate

his contention, he has taken us through the evidence of the

witnesses to that effect and then would urge that the acquittal is

liable to be reversed. In addition, he would urge that the evidence

is required to be re-appreciated particularly when the Sessions

Court has committed an error while granting acquittal by

misreading the evidence.

6. With the assistance of the learned Additional Public

Prosecutor and the learned counsel (appointed) for the respondent

nos.1 to 4 and 6 to 8, we have perused the evidence as is brought

on record. P.W.1-Sayyad Irshad claims that at the relevant time, he

was cleaning clothes and all of a sudden, the accused persons

assaulted him by weapons which are marked as Article A to H. In

his testimony, it has not brought on record that at the time of

assault, his brother P.W.2-Naim was accompanying him. It is also

not on record that Naim along with him was present on the spot.

As such, the testimony of the said witnesses does not repose

confidence in the prosecution story. Apart from above, P.W.2-Naim

Ali claimed that he was present along with his brother when assault

APEAL 652/05 4 Judgment

took place. However, he has not stated as regards the active role

played by each of the accused so as to specify the authorship of the

injuries suffered. Though he supports report Exhibit 61, however,

he stated that at the diktat of his brother Kayyum, he has authored

report Exhibit 61. Upon scrutiny from his evidence it could be

inferred that what is stated in the report Exhibit 61 was not the

actual act as same was authored at the behest of his brother

Kayyum. Apart from above, in the complaint, there is a reference

about use of the weapon Farshi, whereas in the testimony of P.W.2-

Naim, there is mention of weapon Axe. As such, what has been

stated in the report Exhibit 61 is not corroborated with the evidence

of the P.W.2.

7. The P.W.2-Naim in his cross-examination had narrated

as regards insertion of the names of the accused persons in view of

earlier enmity at the behest of his brother Kayyum. Such admission

is detrimental to the prosecution case as it is P.W.1 and P.W.2 who

are claiming to be the eye witnesses to the incident.

8. P.W.3 in his cross-examination has in clear terms

admitted the case of the defence. Though the prosecution ought to

APEAL 652/05 5 Judgment

have subjected him to cross-examination, such attempt is not

noticed during the trial.

9. Apart from above, P.W.5 Shabbir has in vague manner

stated as regards the prosecution story and has referred to the

weapons as sticks and iron pipes which were not corroborated with

that of the medical evidence. He has also not stated as regards

which accused has used which weapon. He further goes in

admitting in his cross-examination as regards the existence of

earlier enmity.

10. P.W.12-Dr.Arun Shendre examined Naim on

16.02.1996 and also analyzed five x-ray reports and inferred that

there was a fracture on third metacarple bone and stated the nature

of injuries. He deposed that, apart from above, no injuries could be

noticed on the body of victim Naim. Injury certificate Exhibit 94

speaks of two incise wounds to Naim Ali.

11. Dr.Shyam Rathi, P.W.13 has narrated following injuries

suffered by Naim Ali.

i.               Small puncture wound over Right hand.



 APEAL 652/05                                       6                          Judgment


ii.              L.W. over base of left index finger.

iii.             Wound over scalp already stitched.

iv.              Contusion low back and right paralumbar region.

v.               Sprain left knee joint and Rt. Ankle joint.

Sofar as Irshad, the other victim is concerned, he suffered following

injuries.

i. L.W. over proximal phalynx of left middle finger.

ii. Crushed injury left little finger and distal phalynx was

attached only with skin tag.

iii. Stitched wound over right leg and scalp.

In his cross-examination, he has stated that he had treated the

patients in private hospital, however prepared the papers in General

Hospital. The victims were referred out of suspicion of fracture and

further opined that there was no danger to the life of both the

patients.

12. In view of the fact that the injuries as were suffered by

the victim were stated to have been not life threatening, the very

invoking of the charge under Section 307 of the Penal Code is not

APEAL 652/05 7 Judgment

warranted. The injuries suffered by the victim in the aforesaid

background cannot be termed to be the one which satisfies the very

ingredients of Section 307 of the Indian Penal Code.

13. In the aforesaid background, the acquittal as is ordered

by the learned Sessions Judge, if viewed in the backdrop of the

scope as is discussed by the Apex Court in the judgments qua the

interference in the matter of acquittal, the view expressed by the

Sessions Court appears to be a plausible view and cannot be termed

to be not an impossible view. In the aforesaid background, the

claim of the learned Additional Public Prosecutor that upon re-

appreciation of the evidence, there is case for reversal of the

acquittal into conviction, does not appears to be appealing to us.

14. In the aforesaid backdrop, the appeal fails and is

dismissed.

15. Costs are quantified for the appointed counsel Shri D.S.

Lambat at Rs.5,000/-.

                JUDGE                                         JUDGE
APTE