The State Of Maharashtra vs Hajimalang Lalasaheb Mulla And ...
2021 Latest Caselaw 1216 Bom

                                                    APPEAL-902-2002-J.doc


            IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                  CRIMINAL APPELLATE JURISDICTION

                  CRIMINAL APPEAL NO.902 OF 2002

STATE OF MAHARASHTRA                           )...APPELLANT
                                          (ORIG. COMPLAINANT)

         V/s.

1) SHRI HAJIMALANG LALASAHEB MULLA              )
   Age 27 years, R/o. Telgaon,                  )
   Taluka South Solapur                         )
                                                )
2) SHRI.MAHADEO BALKRISHNA SUTAR                )
   Age 19 years, Occupation - Nil               )
   R/o. Telgaon, Taluka South Solapur           )
                                                )
3) SHRI.MAHIBOOB JOKUBA SHAIKH                  )
   Age 35 years, Resident of Mandrup            )
   Taluka South Solapur                         )
                                                )
4) SHRI.BABULAL LALASAHEB MULLA                 )
    Age 43 years, Resident of Marwade           )
    Taluka South Solapur                        )
                                                )
5) SHRI.REVAN CHANBASU BERUNGI                  )
    Age Adult, Resident of Telgaon              )
    Taluka South Solapur                        )
                                                )
6) SHRI.MAHADEO KALAPPA BIRAJDAR                )
    Age Adult, Resident of Telgaon              )
    Taluka South Solpaur                  )...RESPONDENTS
                                   (ORIG. ACCUSED NOS. 1 TO 6)
                                ......
Mr.H.J.Dedhia, APP for the Appellant - State.
Mr.S.G.Kudle, Advocate for Respondent Nos.1 to 6.




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                     CORAM             : PRASANNA B. VARALE &
                                         V. G. BISHT, JJ.

               RESERVED ON             : 16th DECEMBER 2020
               PRONOUNCED ON           : 19th JANUARY, 2021

JUDGMENT : (PER : V. G. BISHT, J.)

1. This appeal is filed by the State challenging judgment and order

of acquittal dated 17th April 2002 passed in Sessions Case No.58 of

1996 by the learned IVth Additional Sessions Judge, Pandharpur, for the

offence punishable under Section 395 read with 397 of the Indian

Penal Code, 1860 ('IPC' for short).

2. It is the case of prosecution that the informant at the relevant

time was a practicing doctor of Village Marwade, Taluka Mangalvedha,

Pandharpur. One Dr.B.N.Mulla was an old practicing doctor there. As

the informant started getting more patients than Dr.B.N.Mulla, the

latter got annoyed.

3. On 3rd November 1995, while the informant was closing his

dispensary, one unknown person came and requested him to examine a

patient by name Sangolkar, aged 70 years of Mouze Kagasht, who was

suffering from Asthma. The informant along with that person and his

assistant namely Sukhdev Tipanna Kengar (PW5) on his bike started

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proceeding towards the said village. It was around 7.00 p.m.

4. The prosecution next contends that after covering a route of 4

km., the said unknown person requested the informant to stop the

motorcycle as he wanted to attend call of nature and accordingly the

informant stopped his motorcycle. The prosecution alleges that at that

point of time, all of a sudden, four persons came in front of him. One

of them was armed with a stick and another one removed the keys of

the motorcycle. The person who was having the stick was recognized

by the informant as Dr.Khaja Mulla of Village Telgaon. The prosecution

alleges that Dr.Khaja Mulla then inflicted blow of stick on the head of

informant and uttered "मेरे भाई के पेट पर लात मारता है कया ? तू कैसा डॉकटरी

चलाता है तुझे देखता हू.ं " The prosecution further alleges that he then

exhorted his companions in Kannada language and thereafter all of

them assaulted the informant by means of fist and kick blows. An

unknown person who was accompanying the informant also came

along with one more person and they also started assaulting the

informant by means of fist and kick blows.

5. The prosecution further alleges that Dr.Khaja Mulla then

removed the locket from the neck of the informant and rest of the

persons removed wrist watch, gold ring and cash amount from the pant

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pocket of the informant. They all even stripped the informant. When

informant started crying and those persons saw a vehicle coming, they

ran away on two motorcycles.

6. The informant and his assistant then took a lift from the driver of

a jeep who was known to the informant and chased those persons but

could not apprehend them as all of them had fled away after leaving

their motorcycles.

7. Later on, the informant and his assistant went to the residence of

one Gopal Rathod and narrated the incident, who rang up

Mangalvedha Police Station and the informant was treated at a

Government hospital at Marwade.

8. The informant accordingly lodged the report with Mangalvedha

Police Station on the basis of which Crime No.95 of 95 under Section

395 of the IPC came to be registered against those persons.

9. It appears from the record that PW7 Dhanraj Shankar Gaikwad,

the then Assistant Police Inspector of Mangalvedha Police Station

recorded the First Information Report (FIR) of informant and registered

the said crime. During the course of investigation he seized two

motorbikes and recorded statement of witnesses.

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10. It further appears from the record that the latter part of the

investigation was carried out further by PW8 Shahaji Dhondiram

Jadhav, Assistant Police Inspector. During the course of investigation he

arrested accused Haji Malang Mulla (A-1) and seized a gold ring and

cash amount of Rs.1,000/- at his instance. After completion of

investigation he submitted the charge-sheet against the accused.

11. The prosecution, in order to prove its case, has examined as

many as eight witnesses and exhibited number of documents. The

respondents/accused were questioned under Section 313 of the Code

of Criminal Procedure, 1973 (Cr.P.C.) about the incriminating evidence

and circumstances and they denied all of them as false. According to

them, the wife of accused no.2 was the President of Taluka unit of

Shivsena and because of political rivalry a false case is filed though no

such incident happened.

12. Mr.Dedhia, learned APP for the appellant-State, assailing the

impugned judgment and order of acquittal submitted that despite there

being clear and cogent evidence of PW1 - informant and the medical

evidence in support thereof, the learned Judge wrongly disbelieved the

testimony overlooking the factum of recovery of gold ring and cash

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amount at the instance of A-1. According to the learned APP, the

evidence on record is sufficient to connect the accused with the offence

and in the circumstances, the present appeal deserves to be allowed.

13. Mr.Kudle, learned counsel for the respondents-accused, on the

other hand, has supported the impugned judgment and order of

acquittal. According to the learned counsel there is absolutely no

satisfactory evidence on record to prove the involvement of accused in

the alleged offence. There being no merit in the appeal, the same is

liable to be dismissed, argued learned counsel.

14. We have perused the record very carefully and in our opinion,

the main prosecution witnesses are PW-1 informant and PW-5 Sukhado

Tippana (Nippana) Kengar who at the relevant time was the assistant

of informant and had accompanied the former and witnessed the

incident.

15. PW-1 Bhimrao Tamma Javir, informant, in his evidence (Exh. 15)

states that he has been practicing Medicine in the area of Marwade and

prior to him one Haji Mulla (A-1) was practicing there. As the patients

of A-1 became less because of his practice, the latter was annoyed with

him.

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16. It is his further evidence that on 3 rd November, 1995 at about

7.00 p.m while he was closing his dispensary one person came and told

that one aged patient of Asthama was at Sangolkar Vasti. He then took

that man and one Sukhadeo Nippana Kengar (PW-5) on his motorcycle.

After some time that unknown person asked him to stop the bike as he

wanted to attend the call of nature. He got down from the motorcycle

though the engine was on. That person then brought 5 to 6 persons

who encircled him by putting the hands with each other. He

recognized Dr. Haza (A-1) who gave a blow of a stick on his head by

saying that he (informant) was affecting his brother's means of

subsistence. A-1 also snatched a locket from his neck and took away his

ring and also the cash amount of Rs. 5000/- from his pocket.

17. It is his further evidence that his motorcycle was taken to the side

of the road and he was beaten severally. His clothes were removed and

he was beaten in nude condition. He became unconscious and

regained consciousness after half an hour.

18. It is his further evidence that he gave a signal to stop the jeep

belonging to Shri Bhuse which was passing by the road. Its driver was

Lahu Jadhav (PW-6) who is known to him. He told him the entire

episode. He and Sukhadeo then boarded the jeep. Shri Jadhav started

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to chase the assailants. The assailants were going by motorcycle.

When the focus of the head lights of the jeep fell on them they ran

away by leaving their motorcycles on the road. They were taken to the

house of one Gopal Rathod and the said Gopal Rathod then informed

the police about the incident. He then proved his FIR at Exh. 16.

19. If the evidence of this material witness is read carefully in the

light of accusations made in the FIR then we find anything but

satisfaction. The evidence of the informant shows that when the said

unknown person requested him to stop the motorcycle so as to enable

him to attend the call of nature and he accordingly stopped the

motorcycle, that unknown person got down and after some time he

returned with 5 to 6 persons who encircled the informant. But this

sequence of events does not find any mention in the FIR. What the FIR

shows is that when the said unknown person went ahead to attend the

call of nature, all of a sudden four persons came in front of informant

of which one was armed with a stick while another removed the key of

motorcycle from the ignition.

20. The interesting part of evidence then shows that when those

persons encircled, as per evidence, the informant could recognize one

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of them as Dr. Haza i.e. A-1 having a stick in his hand and who later on

gave a blow of the same on his head. The FIR, on the other hand,

reveals the name of Dr. Khaza Mulla and not Dr. Haza as is deposed in

the evidence and when the attention of this witness was drawn as to

this material discrepancy in the cross-examination, this witness replied

that he had not mentioned the name of Dr. Khaza Mulla while lodging

the FIR but had given the name of Dr. Haza and failed to assign the

reason as to why the police wrote the name of Dr. Khaza instead of

Dr. Haza.

21. Even he went to the extent of stating that the police did not

record his report as per his say. There is no explanation as to why, if he

was knowing that the report was not recorded as per his say, he did

not make complaint to the superior authority in this regard. This

material infirmity cannot be now cured by giving unsatisfactory

responses.

22. The evidence of informant also shows that apart from snatching

a locket from his neck, A-1 also removed a ring and also the cash

amount of Rs. 5000/- from his pocket. This is again inconsistent with

the FIR wherein it is alleged that the ring and cash amount were

robbed from him by others.

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23. What is most perplexing aspect of his evidence is that he was

unconscious for about half an hour and when he regained

consciousness, he sought the help of a passing jeep, the driver of which

was known to him and then with the help of that jeep they all chased

the robbers. If he was unconscious for about half an hour and the fact

that those robbers were having motorcycles with them then by no

stretch of imagination it can be said that those robbers would have

waited for the informant to regain consciousness and then only they

would have taken to their heels only to be chased later on by the said

jeep, as is claimed by informant. Even there is no murmur in the FIR

that because of alleged beating he had lost the consciousness.

24. Lastly, it appears from the cross-examination of this witness that

the incident took place somewhere between 7 to 8 p.m. The informant

admits in his cross-examination that the incident took place in the night

hours and at that time there was darkness. Not only the FIR but the

evidence of informant shows that he was acquainted or knowing only

one of those persons and that person was either Dr. Khaza or Dr. Hazi

Mulla as the case may be and not the other persons. How he could

identify those persons before the Court after a period of more than

seven years is really intriguing. It is also not the case that there was test

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identification parade conducted by the investigating officer during the

course of investigation and during that test identification parade he

was able to identify those persons.

25. Now we come to the evidence of assistant of PW-1 informant and

eye witness to the incident, namely, PW-5 Sukhadeo Nippanna Kengar.

26. PW-5 states in his evidence (Exh.27) that on the day of incident

Dr. Javir (PW-1) told him that one boy had come to call him for

examining a patient at Sangolkar Vasti. He, that boy and Dr. Javir (PW-

1) started to proceed to Sangolkar Vasti by motorcycle. After traveling

3-4 km. the said boy told that he wanted to attend call of nature and

therefore, the motorcycle was stopped. After that boy went to attend

call of nature, some persons came there and started beating Dr. Javir

and at that time in order to save himself, out of fear, he stood at some

distance. As it was 8.00 p.m. he could not realize as to who was beating

Dr. Javir. As the engine of motorcycle was on he saw that the brother

of Dr. Mulla, namely, Haji (A-1) put off the key of the motorcycle.

27. It is his further evidence that Dr. Javir (PW-1) was beaten by

stick. The clothes of Dr. Javir were removed by the assailants and

therefore, he gave one of him.

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28. The evidence led by this witness is quite contrary and

inconsistent vis-a-vis PW-1 informant. While the evidence of PW-1

shows that after the said unknown person alighted from the

motorcycle, he returned with 5 to 6 persons and he was encircled

whereas the evidence of PW-5 eye witness shows that some persons

came and started beating Dr. Javir.

29. The evidence of this eye witness is totally silent and does not in

any manner corroborate and support the version of PW-1 informant to

the effect that A-1 had come armed with stick and had given a blow on

the head of informant. Further, the evidence of this witness shows that

in order to save himself, out of fear, he stood at some distance. The

informant has not uttered anything about the conduct of this witness

but if we read the FIR then we find that in the FIR it is contended that

this witness had run away while the informant was being beaten by

those persons.

30. The evidence of this witness then shows that he had seen

A-1 putting off the engine of motorcycle by taking away the key of the

motorcycle. But this has come in his evidence by way of omission and

when confronted in the cross-examination that the said fact was

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missing from his statement recorded by the police, he failed to assign

any reason as to why that fact is missing from his statement. However,

PW-7 Investigating Officer in his cross-examination (Exh. 31) has duly

proved the omission by stating that this witness had not stated at the

time of recording of statement that the brother of Dr. Mulla, namely,

Hazi (A-1) had removed the keys of the informant's motorcycle.

Therefore, there is absolutely no evidence to show that this witness had

seen even A-1 at the time of alleged incident.

31. Although his evidence lastly shows that Dr. Javir i.e. PW-1 was

beaten by stick but in the very beginning he stated that he could not

realize as to who were assailants.

32. One more significant aspect of the evidence of this witness is that

none of the accused was identified by him before the Court.

33. Thus, having regard to the discussion made by us, we conclude,

firstly, that the substantive evidence of the informant vis-a-vis FIR is at

loggerheads. There is no satisfactory evidence as to how and under

what circumstances those unknown persons came to be identified by

PW-1 informant almost after a period of more than seven years before

the Court. Secondly, the so called eye witness i.e. PW-5 has not in any

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manner supported the version of PW-1 informant and testimonies of

both these witnesses are quite contradictory.

34. Even assuming for the sake of argument that A-1 and A-4 were

known to informant but then still there remains a mystery as to on

what basis the investigating officer chargesheeted A-2, A-3, A-5 and A-

6. Thus, the investigational aspect of the case also needs to be

questioned.

35. Even the evidence of both the investigating officers, namely, PW-

7 and PW-8 are silent as to how the above said accused came to be

identified during the course of investigation.

36. Thus seen from any angle there is nothing but total failure on the

part of prosecution.

37. In view of above, the remaining evidence in the form of medical

certificate pertaining to informant and as also the recovery evidence

lose its significance and need not be looked into.

38. The above being the nature of evidence and obtaining

circumstances the learned trial Court rightly held that prosecution has

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failed to prove its case beyond reasonable doubt. This finding of the

trial Court could not be said to be perverse. It was based on a proper

appreciation of evidence.

39. On perusal of the entire evidence, we are of the considered view

that the trial Court was right in holding that the prosecution has failed

to prove its case beyond reasonable doubt that the respondents-accused

robbed and assaulted the informant on the day of incident.

40. For the aforesaid reasons, we find no merit in the appeal and

pass the following order :

ORDER

Criminal Appeal is dismissed.

      (V. G. BISHT, J.)                            (PRASANNA B. VARALE, J.)




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