The State Of Maharashtra vs Isaq Chandkhan Pathan & Ors
2017 Latest Caselaw 8067 Bom

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           IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                      BENCH AT AURANGABAD

                      CRIMINAL APPEAL NO. 301 OF 2000

1)    Ishaq Chand Khan Pathan,
      Age: 35 years,

2)    Sharif Mohd. Pathan,
      Age: 37 years,

3)    Ayyub Fakir Pathan,
      Age: 40 years,

4)    Layak Mohd. Pathan,
      Age: 40 years,
      All R/o Manik-Daundi,
      Tal. Pathardi, Dist. Ahmednagar.                      ..        Appellants

                       Versus

      The State of Maharashtra                              ..        Respondent
                                          ---
                     Ms. A.N. Ansari, Advocate for Appellants.
                     Mr. D.R. Kale, A.P.P. for Respondent-State
                                          ---

                                   with
                      CRIMINAL APPEAL NO. 391 OF 2000

      The State of Maharashtra,
      through Pathardi Police Station,
      Tq. Pathardi, Dist. Ahmednagar.                       ..        Appellant

               Versus

1)    Ishaq Chand Khan Pathan,
      Age: 30 years,

2)    Sharif Mohd. Pathan,
      Age: 32 years,



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                                       (2)                     253 cri.apeal 301.00

3)      Ayyub Fakir Pathan,
        Age: 35 years,

4)      Layak Mohd. Pathan,
        Age: Major,
        All R/o Manik-Daundi,
        Tal. Pathardi, Dist. Ahmednagar.                 ..        Respondents

                                        ---
                     Mr. D.R. Kale, A.P.P. for Appellant-State
                    Ms. A.N. Ansari, Advocate for Respondents.
                                        ---
                                 CORAM : S.V. GANGAPURWALA &
                                               MANGESH S. PATIL, JJ.

RESERVED ON :11/08/2017 PRONOUNCED ON : 12/10/2017

JUDGMENT:- (Per S.V. Gangapurwala, J.)

. Criminal Appeal No. 391 of 2000 is filed by the prosecution

against the judgment of the Sessions Court acquitting accused nos. 2, 3,

4 and 40 of the offence punishable under Section 324 and 148 of the

Indian Penal Code. Appeal No. 301 of 2000 is filed by accused nos. 2, 3,

4 and 40 challenging the judgment of the Sessions Court convicting them

for the offence punishable under Section 323 and 341 of the Indian Penal

Code.

2. The case of the prosecution is that on 17.09.1994 at about

5.00 pm the procession for immersion of idol of Ganpati was taken out at

village Manik-Daundi, the procession culminated at about 8.30 pm.

Thereafter, the complainant Popat had meal and was sleeping. At about

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9.00 pm the people from Muslim community as named by the said

complainant came to the house of the complainant and asked him as to

why he had taken out procession of Ganpati, on that count the accused

persons pelted stones at his house. The complainant was injured, the

complainant came to know that on the way to Manik-Daundi to Shelke

Wada in Kund near river one Jagannath Murlidhar Shelke and Shankar

Uttam Shelke resident of Shelke Wada, Taluka Pathardi were also beaten

by the said accused persons with knife and stones. The mob had broken

glasses of the Hanuman temple by pelting stones. Pursuant to the

complaint the offence came to be registered against the number of

accused persons under Section 143, 147, 148, 149, 324, 341, 452, 337,

338, 427 and 307 of Indian Penal Code. In the trial all the accused

persons were acquitted of all offences except accused nos. 2, 3, 4 and

40. These accused were convicted for the offence punishable under

Section 323 and 341 of Indian Penal Code. There were acquitted of all

other offences.

3. As we are concerned with accused nos. 2, 3, 4 and 40, we

are discussing the evidence relevant to these accused only.

4. The prosecution to establish the guilt of accused nos. 2, 3, 4

and 40 is mainly relying on evidence of PW-15 i.e. Jaganatth Shelke and

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PW-9 i.e. Dr. Ramprasad Purshottam Kulkarni, who is the Medical Officer

at Rural Hospital, Pathardi.

5. It would be worthwhile to consider that PW-15 injured

Jagannath Shelke could not identify accused no.2 in the Court nor any

identification parade was conducted.

6. The evidence of PW- 15 will have to be appreciated on the

touchstone of the fact that alleged incident had taken place at about 9.00

pm in the night and further the said witness had specifically stated that

there was no electricity facility on the way leading to his Vasti from the

village i.e. where the Kund is situated and the alleged incident had taken

place. The counsel for the accused laid emphasis on the omissions in the

statement and submits that the said witness is improvising the case. It

is also the contention of the learned counsel for the accused that the

articles as alleged to have been used in the commission of the offence

are not at all recovered from accused nos. 3, 4 and 40. The recovery

from the accused no.2 is also shrouded with suspension and the Article

which is said to have been recovered from the house of accused no.2

would be of no avail, for the reason that such article i.e. iron bar would

be found in all houses of agriculturists. It is further the contention of

the accused that, said PW-15 Jagannath even could not state in his

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statement before the Police as to which weapons were allegedly used in

the said offence. The said witness admitted that the police had told him

that as the earlier statement was not properly recorded a fresh

statement was being recorded. According to the learned Counsel, the

evidence on record is not sufficient to convict the accused for the offence

punishable under Section 323 and 341 of the Indian Penal Code.

7. The learned A.P.P. submits that the prosecution has proved

the guilt as against the accused nos. 2, 3, 4 and 40, beyond all

reasonable doubt. Recovery has been made from accused no.2. Minor

contradictions and omissions in the statement would not be fatal to the

prosecution case considering that the statement was recorded after a

long gap. The incident as narrated by PW-15 and injury sustained by

him are corroborated by the evidence of PW-9 and the said evidence is

sufficient to convict the accused. Considering the weapons used and the

injuries sustained by PW-15, the accused nos. 2 to 4 and 40 are required

to be convicted under Section 324 of the Indian Penal Code. The case for

the offence punishable under Section 148 has also been made out. It has

been proved that they were the members of the unlawful assembly.

8. We have considered the submissions canvassed by the

learned counsel for respective parties and have also gone through the

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evidence on record. At the outset, it is required to be observed that PW-

15 Jagannath Shelke could not identify accused no.2 though he was

given repeated opportunity in the Court. Though, the said accused was

present in the Court, PW-15 stated that said Isak Chand Khan Pathan

was not before the Court. A pointed question was also put to him

thereafter still he could not identify accused no.2. Admittedly no

identification parade was concluded.

9. Upon consideration of the evidence of PW-15 threadbare, it

would be seen that he has imputed the act as against accused nos. 2, 3,

4 and 40 only. Whereas, the complainant had named various persons

including the present accused. The prosecution did not examine Shankar

Shelke who according to Jagannath was accompanying him at the time of

the incident and said Shankar had also received injury. It is also not

brought on record as to whether his statement is ever recorded under

Section 161 of the Criminal Procedure Code. According to prosecution,

he was an eye witness. The best witness is withhold, therefore adverse

inference can be drawn for withholding best evidence. We will have to

appreciate the evidence of PW-14, PW-15 and PW-9 while considering the

offence as alleged against accused nos. 2, 3, 4 and 40.

10. As far as injuries to Jagannath PW-15 is concerned, PW-9

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stated that he did not mention the nature of injuries in the certificate

because he could not receive the documents from Civil Hospital,

Ahmednagar. He has stated that Jagannath Shelke has received

following injuries:

"1) Contused lacerated wound on left parital region 6 x 2 c.m. bone deep.

2) Abrasion on left forearm upper 1/3rd measuring ½ x ½ cm.

3) Contusion over left lower back measuring 10x2 cm.

reddish in colour."

11. He further states that injury no. 1 could have been caused by

pelting stone. Injury no.2 could have been caused by brushing aside.

Injury no.3 could have been caused by stick or thick iron bar. The

injuries as quoted above are in the nature of contused lacerated wound

on the left parital region, abrasion on left forearm and contusion over left

lower back. PW-15, states that he was beaten on head with

Stiletto(Gupti), with stick and iron bar on his back. He further states that

out of these four persons two of them were armed with sticks in their

hand i.e. Ayub Fakir Pathan and Sharif Mohd. Pathan. Layak Mohd.

Pathan was armed with Stiletto and Isak Chand Khan Pathan was armed

with iron bar.

12. The Doctor PW-9 said that injury no.1 could have been

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caused by pelting stones. The Doctor's evidence does not suggest that

any of the injuries could have been caused by Stiletto. The other injuries

he has stated could have been caused by thick iron bar and or stick. The

evidence of PW-15 and 9 will have to be read in tandem to come to a

definite conclusion.

13. PW-14 in his evidence categorically states that amongst other

accused, accused nos.2, 3 and 40 were also pelting stones at him at

Manikwadi near Maruti temple and the mother and father at the same

time were beaten by sticks. As per the evidence of PW-15 accused nos.

2, 3, 4 and 40 attacked him near the Kund both the places are distinct

and same accused persons cannot remain present at two different places

at the same time.

14. It also needs to be considered that the recovery allegedly was

made from accused no.2, whom the witness even failed to identify in the

Court. No recovery of any articles is made from the accused nos.2, 3, 4

and 40. Moreover, even as per the evidence of PW-9 Doctor the injuries

sustained by PW-15 could not have been caused by Stiletto.

15. In view of the anomalies and inconsistency as appearing,

such as PW-15 could not identify accused no.2 in the Court, no

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identification parade being conducted, Shankar who is alleged to be

accompanying PW-15 at the time and who also had received injury as per

the prosecution case is not examined. The only eye witness is not

examined, as such, adverse inference can be drawn from withholding the

best witness. So also no recoveries have been made from accused nos.

2, 3, 4 and 40. PW-14 attributing presence of accused nos.2, 3, 4 and

40 at Manikwadi near Maruti temple and PW-15 at the same time alleging

acts as against accused nos. 2, 3, 4 and 40 near the Kund and absence

of any electricity at dark night at about 9.00 pm at the said place,

making it impossible to recognize accused persons. All these factors

taken cumulatively raises a doubt about acceptance of the case of the

prosecution. The accused, as such, are entitled to the benefit of doubt.

16. In view of the above, the accused persons deserve to be

acquitted and are hereby acquitted of all the offences charged against

them. The criminal appeal no. 301 of 2000 is allowed and criminal

appeal no. 391 of 2000 stands dismissed.

[MANGESH S. PATIL, J.] [S.V. GANGAPURWALA, J.]

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