Tannu @ Tanvirkhan Rahimkhan 3 ... vs State Of ...
2017 Latest Caselaw 6880 Bom

 apeal608.02.J.odt                         1

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

                     CRIMINAL APPEAL NO.608 OF 2002

 1]       Tannu @ Tanvirkhan Rahimkhan
          Aged about 22 years,
          Occupation: Labour.
          Resident of Gittikhadan, Nagpur.

 2]       Chotu s/o Singai Uike
          Aged about 19 years,
          Occupation: Labour,
          Resident of Azad Nagar, Nagpur.

 3]       Krunal s/o Bapurao Madavi
          Aged about 19 years,
          Occupation: Labour,
          Resident of TV Tower, Nagpur.

 4]       Ramesh s/o Roopchand Nandeshwar
          Aged about 21 years,
          Occupation: Labour,
          Resident of Krushnagagar, Nagpur. ....... APPELLANTS

                                   ...V E R S U S...

          The State of Maharashtra
          (Through PSO Sadar, Nagpur).                       ....... RESPONDENT
 -------------------------------------------------------------------------------------------
          None for Appellants.
          Shri N.B. Jawade, APP for Respondent/State.
 -------------------------------------------------------------------------------------------

          CORAM:            ROHIT B. DEO, J. 

          DATE:               th
                            7    SEPTEMBER, 2017.


 ORAL JUDGMENT



 1]               The   counsel   for   the   appellants   is   absent   when   the

appeal is called out in the afternoon session. The counsel for the

appellants was absent even on the last date of hearing i.e.

31.08.2017. This Court vide order dated 31.08.2017 had made it

clear that if the counsel for the appellant does not work out the

appeal on 07.09.2017, the appeal shall be decided on merit

consistent with the dictum of the Hon'ble Supreme Court in Bani

Singh and others vs. State of Maharashtra, (1996) 4 SCC 720.

With the assistance of Shri N.B. Jawade, the learned Additional

Public Prosecutor, I have scrutinized the evidence on record.

2] The gist of the prosecution case is that on

28.03.2000, the appellants (herein after referred to as "the

accused") assaulted one Syed Shadap with sword. The assault

allegedly took place in the ground of the Corporation School at

Bijli Nagar. The complainant-informant who was then P.S.I.

attached to Police Station Sadar, Nagpur was returning to the

Police Station after conducting a raid in relation to suspected

offences under the Prohibition Act, when he noticed a commotion

near the Corporation School at Bijli Nagar. The informant

allegedly investigated and noticed that four persons were brutally

assaulting one Syed Shadap with swords. The informant ordered

the assailants to drop the sword and thereafter apprehended them

from the spot. The first informant has conducted the investigation

and presented the charge-sheet in the Court of Judicial Magistrate

First Class who committed the case to the Sessions Court. The

Sessions Judge framed charge at Exh.2. The accused pleaded not

guilty and claimed to be tried. The defence of the accused is of

total denial and false implication.

3] I must noticed certain striking features of the

prosecution case. The injured who is examined as P.W.1

categorically stated in the examination-in-chief that he is not in a

position to say whether the accused are the same boys who

assaulted him. Interestingly, the said witness is not declared

hostile. The version of the injured that he is not in a position to

say that the accused were the assailants is therefore, binding on

the prosecution. It may be noted that in the cross-examination the

injured witness further admits "accused are not the assailants".

The other witness who is touted as an eye witness to the incident

is Mohd. Shoab (P.W.6). The said witness did not support the

prosecution. However, even this witness was not declared hostile.

The only witness to the alleged assault is therefore, the informant

who is examined as P.W.7.

4] P.W.7 claims to have witnessed the assault. It is

P.W.7 who lodged the report on the basis of which the F.I.R. is

registered. P.W.7 is also the Investigating Officer. I have no

hesitation in coming to the conclusion that the very fairness of the

investigation and the credibility of the testimony of P.W.7 is in

serious doubt. The eye witness who is an informant and who is

therefore, aware that the fate and liberty of the accused would

rest on his testimony in the trial, ought to have declined-avoided

to investigate the offence. In my considered opinion, the fact that

the eye witness, informant, and investigator is the same person

renders the investigation suspect.

5] The injured has refused to identify the accused as

assailants. Indeed, the injured categorically admits that the

accused are not the assailants. P.W.6 who the prosecution

contends is an eye witness has also not supported the prosecution.

In the teeth of such evidence, I am not persuaded to hold that the

accused can be convicted of any offence much less under section

307 of I.P.C. on the basis of the testimony of P.W.7 that he

apprehended the accused from the spot and that the accused were

assaulting the injured. Firstly, the fairness of the investigation and

a fortiori creditability of P.W.7 as eye witness is in serious doubt.

Secondly, the evidence on record is grossly insufficient to bring

home charge under section 307 of I.P.C. Liberty of the accused

cannot be sacrificed at the alter of shoddy or unfair investigation

and the sole uncorroborated version of a witness who has dawned

multiple robes, that of an witness, informant and investigator.

6] The appeal deserves to be allowed. The appellants are

acquitted of offence punishable under section 307 of I.P.C.

  7]               The bail bonds shall be stand discharged.



  8]               The fine amount paid, if any, by the appellants shall

  be refunded to them.



  9]               The appeal is disposed of accordingly.



                                                  JUDGE



NSN