State Of Mah. Thr. P.S.O. Pusad, ... vs Muzafaroddin Alias Kadu ...
2017 Latest Caselaw 2447 Bom

Judgment

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
           NAGPUR BENCH, NAGPUR

               CRIMINAL APPEAL NO.404 OF 2003

State of Maharashtra, through
Police Station Officer,
P.S. Pusad City, District Yavatmal.           ..... Appellant.

                                  ::   VERSUS   ::

1.  Muzafaroddin alias Kadu s/o Rahimoddin,
Aged about 28 years,

2.  Jakiroddin s/o Rahimoddin,
Aged about 25 years.

3.  Sajju s/o Rahimoddin,
Aged about 20 years.

4.  Arefabi w/o Rahimoddin,
Aged about 24 years.

All R/o Gadhi Ward, Pusad,
District Yavatmal.                                   ..... Respondents.

==============================================================
          Shri N.R. Patil, Addll. P.P. for the Appellant/State.
          Shri Shankar Borkute, Adv. h/f Shri Mohammed Ateeque, 
          Counsel for the Respondents.
==============================================================


                                CORAM : N.W. SAMBRE, J.  

DATE : MAY 9, 2017.

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ORAL JUDGMENT

1. Heard learned Additional Public Prosecutor

Shri N.R. Patil for the appellant/State and Advocate

Shri Shankar Borkute h/f learned counsel Shri

Mohammed Ateeque for the respondents/accused.

2. In Sessions Trial No.4 of 1998, for the offences

punishable under Sections 143, 147, 148, 447, and 307

read with Sections 149, 324, and 149 of the Indian Penal

Code, the respondents/accused were acquitted by

judgment and order dated 3.3.2003 by learned IInd Ad

hoc Additional Sessions Judge, Pusad. As such, the

present appeal is against acquittal by the State.

3. The case of the prosecution, as appears from

the record available is, the complainant along with his

other family members viz. brothers and parents were

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residing adjacent to the house of the

respondents/accused. It is the case of the prosecution

that accused No.4 was of quarrelsome nature and the

issue for quarrel was an access road to the house. It is

alleged that on the issue of differences over access way,

accused No.1 armed with a sword (gupti), accused No.2

with an iron rod, and accused No.3 with a wooden bar

have assaulted the complainant, his father, and brother

resulting into registration of crime in question.

4. It is also required to be noted that there is a

counter complaint at the behest of the accused persons

and the offences are also registered against the

complainant which complaint was prior in point of time

in which the respondents/accused are prosecuted in this

case for the offences punishable under Sections 143, 147,

148, 447, and 307 read with Sections 149, 324, and 149 of

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the Indian Penal Code.

5. After investigation was over, the

respondents/accused were charge-sheeted and charge

came to be framed against them on 16.8.2002. Learned

IInd Ad hoc Additional Sessions Judge vide its judgment

and order dated 3.3.2003 acquitted the

respondents/accused. As such the present criminal

appeal.

6. Learned Additional Public Prosecutor Shri

N.R. Patil for the appellant/State would strenuously

urge that the acquittal of the respondents/accused is not

sustainable as there are eyewitnesses to the incident in

question and also recovery of the weapon. According to

him, upon re-appreciation of the entire evidences on

record, it is a case of conviction and as such he seeks

indulgence of this Court.

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7. Per contra, Advocate Shri Shankar Borkute

h/f learned counsel Shri Mohammed Ateeque for the

respondents/accused would urge that the view, as

expressed by learned Judge of the Court below, is a

plausible view and this Court should be slow in

interfering such eventuality. He would then urge that

the acquittal of the respondents/accused is based on

appreciation of evidences which does not call for any

interference and has sought for dismissal of the

criminal appeal.

8. PW1 complainant Sayyad Asgar Ali s/o Usman

Ali is examined at Exhibit 48. In his cross-examination

it is brought on record that there exists difference

between respondents/accused and the complainant

particularly about existence of a wall which was

causing great inconvenience while entering house of

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accused No.4. There also appears to be certain

contradiction as regards presence of brother of the

accused persons. In the said quarrel, the

respondents/accused have assaulted complainant which

resulted into counter offences. PW2 Sayyad Usman Ali

s/o Wajir Ali has tried to support the case of the

prosecution and stated about assault on him with the

help of iron rod, gupti and wooden bar. He speaks of

presence of about 7 to 8 persons. However, he has not

specifically named each of them with active role in the

commission of crime in question. PW3 Sayyad Issa Ali

s/o Usman Ali has also deposed on the same line. PW4

Sherkhan Noor Mohammad Khan was declared hostile

as he was examined in support of drawing spot

panchanama. PW5 Soma Nago Killare has refused to

identify the respondents/accused and upon his

declaration as hostile, he was subjected to cross-

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examination. The said witness has not proved the

seizure panchanama. PW6 Dr. Rajeshwar Sardarsingh

Malani, who is examined at Exhibit 67, has stated about

injuries suffered by Sayyad Asgar Ali and cause of such

injury and proved certificates Exhibits 60, 68, 70, 71, 72,

73, and 74. In his evidence it is brought on record that

injuries suffered by victim are in the nature of abrasion,

contusion, and lacerated wound. He has then stated

that injury cannot be caused by hard and sharp object

like gupti.

9. PW7 Dada Harikeshavrav Chavre is examined

at Exhibit 76 so as to prove spot and seizure

panchanamas.

10. In defence, the respondents/accused have

examined Sayyad Salauddin Sayyad Faiyyazuddin.

11. It is then to be noted that accused Nos.1 and 2

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were found to have suffered injuries which prosecution

has failed to explain. At the behest of accused, Sessions

Trial No.3 of 1998 has resulted into prosecution of the

complainant and in the deposition of the medical officer

in the said session trial the injuries suffered by accused

persons were also brought on record in the trial in

question.

12. The said facts, as regards failure of the

prosecution to prove injuries suffered by the

respondents/accused persons, existence of a dispute

between the respondents/accused and the complainant

as regards access to the house of accused No.4, the

material contradictions as regards evidences of PW1, 2,

and 3, non-mention of specific role as regards each of

the accused, and absence of corroboration thereof, in

my opinion, have rightly prompted learned Judge of the

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Court below to order of acquittal. In the aforesaid

background, since the view expressed by learned Judge

of the Court below is a plausible view, no interference

in the criminal appeal is warranted.

In the result, the criminal fails and is

dismissed.

JUDGE

!! BRW !!

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