Shaikh Musa S/O. Shaikh Yakub vs The State Of Maharashtra
2023 Latest Caselaw 4577 Bom

               IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                          BENCH AT AURANGABAD


                          CRIMINAL APPEAL NO.130 OF 2016


                        Shaikh Musa s/o Shaikh Yakub,
                        Age 26 yrs., Occ. Labour,
                        R/o Khandoba Bazar,
                        Tq. & Dist. Parbhani.

                                                                ... Appellant

                                      ... Versus ...

                        The State of Maharashtra
                        Through the Police Station Officer,
                        Nanalpeth Police Station,
                        Parbhani.

                                                                ... Respondent

                                           ...
                       Mr. P.S. Paranjape, Advocate for appellant
                           Mr. R.D. Sanap, APP for respondent
                                           ...

                                    CORAM :      SMT. VIBHA KANKANWADI
                                                 Y.G. KHOBRAGADE, JJ.

                                    RESERVED ON :               10th APRIL, 2023
                                    PRONOUNCED ON :             03rd MAY, 2023


JUDGMENT :              (PER : SMT. VIBHA KANKANWADI, J.)



1              Present appeal has been filed by the original accused challenging





                                        2                             Cri.Appeal_130_2016_Jd

his conviction by learned Additional Sessions Judge, Parbhani on 12.01.2016

in Sessions Trial No.119/2013 after holding him guilty of committing offence

punishable under Section 302, 307, 323 of the Indian Penal Code, 1860.

2 The prosecution story is that PW 1 Shaikh Sami Shaikh Jamalsa

is resident of Khandoba Bazar, Wangi Road, Parbhani, where he resides with

three sons and four daughters and wife. He lodged report with the Police

Chowky of Civil Hospital, Parbhani around 9.00 p.m. on 29.04.2013. In his

First Information Report he has stated that there was quarrel around 11.00

a.m. on the same day in between his wife and niece residing in the

neighbour. It was on account of placing of stone on the drainage in front of

the house. Thereafter when he as well as his sons were in the house around

6.00 p.m., the son of his niece i.e. present accused started giving abuses to

his son by coming in front of the house. His son Shaikh Ajmat went near

accused and said that he should not abuse. At that time, accused took out

knife and by saying that he would kill, stabbed Ajmat on his right side of the

back. Ajmat received severe injury because of the said stabbing, then

informant's another son Shaikh Mohd. went to catch accused with his friend

Isaq Khan, at that time accused assaulted Mohd. with the same knife to the

left side of the chest of Mohd. and right wrist of Isaq Khan. At the same time,

brother of the accused, who is juvenile, came there and he also assaulted

3 Cri.Appeal_130_2016_Jd

Shaikh Mohammad by knife on the left thigh. Informant himself, Chand

Khan, Syed Khan, Sattar Khan, Syed Yaseen Syed Ibrahim, Sher Khan, Anwar

Khan, Rais Khan, Chand Khan were present and they separated all of them.

In the said quarrel and assault, Shaikh Ajmat died on the spot. His dead

body as well as the two injured persons were taken in auto rickshaw to Civil

Hospital, Parbhani. Informant himself had accompanied them with others.

The accused persons had fled from said spot.

3 On the basis of the said First Information Report offence vide

Crime No.78/2013 came to be registered under Section 302, 307, 326 read

with Section 34 of the Indian Penal Code. Inquest Panchnama was executed

and the dead body was referred to postmortem. After the postmortem was

done, provisional death certificate was collected. Panchnama of the spot was

executed with the help of panchas, statements of witnesses under Section

161 of the Code of Criminal Procedure were taken. Accused/appellant came

to be arrested on the same day and while in police custody he gave

memorandum and discovered two knives. In presence of panchas his

memorandum as well as discovery panchnama has been executed. The

injured persons were admitted to different hospitals. Their statements under

Section 161 of the Code of Criminal Procedure were recorded. Articles were

seized and sent to chemical analysis. After the completion of investigation

4 Cri.Appeal_130_2016_Jd

charge sheet in respect of present appellant came to be filed with Judicial

Magistrate First Class, Parbhani and as regards the juvenile, it was before the

Juvenile Justice Board.

4 After the committal of the case charge was framed against the

appellant/accused at Exh.5, for the offences punishable under Section 302,

307 and 324 of the Indian Penal Code. When he pleaded not guilty, trial has

been conducted. Prosecution has examined in all 14 witnesses to bring home

the guilt of the accused. After considering the evidence on record and

hearing both sides the learned Trial Judge has held that the offences are

proved against the accused/appellant beyond reasonable doubt. The accused

has been sentenced to suffer imprisonment for life and pay fine of Rs.5,000/-

(Rupees Five Thousand only), in deault to suffer simple imprisonment for

one year, for the offence punishable under Section 302 of the Indian Penal

Code. He has been further held guilty of committing offence punishable

under Section 307 of the Indian Penal Code and sentenced to suffer rigorous

imprisonment for 14 years and to pay fine of Rs.5,000/- (Rupees Five

Thousand only), in default to suffer simple imprisonment for one year.

Further, the accused has been sentenced to suffer rigorous imprisonment for

two years and to pay fine of Rs.1,000/- (Rupees One Thousand only), in

default to suffer simple imprisonment for two months for the offence

5 Cri.Appeal_130_2016_Jd

punishable under Section 324 of the Indian Penal Code. This Judgment of

conviction is under challenge in this appeal.

5 Heard learned Advocate Mr. P.S. Paranjape for the appellant and

learned APP Mr. R.D. Sanap for the respondent and perused the evidence on

record.

6 It has been vehemently submitted on behalf of the appellant that

the learned Trial judge has not appreciated the evidence properly. The

prosecution case is based on the testimony of PW 1 Sami, PW 2 Shaikh

Mohammad and PW 13 Isaq Khan. All the three are eye witnesses and PW 2

and 13 are the injured. Their testimonies are full of contradictions and

omissions going to the root of the case and, therefore, they ought not to have

been believed by the learned Trial Judge. PW 1 Sami has stated that after the

alleged assault by knife by the appellant Ajmat died on the spot, however,

this fact is not supported by PW 2 Mohammad and PW 13 Isaq Khan.

Further, it is stated that the quarrel had taken place due to keeping of stone

on the Nali i.e. drainage. It had taken place in the morning between the wife

of the informant and his niece Munnibee, who resides in the neighbourhood.

As per the testimony of PW 1 Sami, though he had seen the incident and

states in the First Information Report that he had accompanied the injured

6 Cri.Appeal_130_2016_Jd

and the dead body to Civil Hospital, he takes a somersault in examination-in-

chief and says that he felt giddiness and fell down and had not accompanied

the injured and the dead body to hospital. He has stated that he went to

hospital around 7.00 p.m. and then reported the incident at 9.00 p.m.

Therefore, there is apparent delay in lodging the First Information Report. It

has also come on record that in between there is a Police Chowky i.e. on the

road on the way to go to Civil Hospital and when PW 1 Sami had gone

afterwards, he could have definitely taken a stop at Police Station, informed

the incident to police and police might have accompanied him to hospital.

There is no explanation for the delay. Further, he is totally silent on the

point, as to where PW 2 Mohammad was after the postmortem of Ajmat was

executed. In his cross-examination he has voluntarily stated that the knife

was in the hand of police when he was giving complaint. Still the police i.e.

PW 12 PI Uday Khanderai has misused the powers and shown the said

recovery of the knife under Section 27 of the Indian Evidence Act. Further,

police atrocities can be seen from the fact that even the discovery of the

weapon, which is alleged to have been used by the juvenile, is also shown

from the present appellant. Such discovery is unbelievable.

7 Learned Advocate for the appellant has further submitted that

the statement of PW 2 Mohammad under Section 161 of the Code of

7 Cri.Appeal_130_2016_Jd

Criminal Procedure has been belatedly taken after about eight days and there

is no explanation to the same by PW 12. He has denied that Ajmat has died

on the spot. The admissions given by him in the cross-examination have not

been considered by the Trial Court. In his examination-in-chief he has stated

that he has become unconscious, but in his statement under Section 161 of

the Code of Criminal Procedure he has not disclosed the said fact. He has not

disclosed the history about his own injury to the Doctor also. If we consider

the testimony of PW 4 Dr. Rubina, who had examined PW 2 Mohammad,

then it can be seen which is coupled with injury certificate Exh.19 that the

injury that was suffered by Isaq Khan was simple in nature and as regards

Mohammad also she had noticed three injuries with sharp object, two of

them were on the thighs and one was on the left side of anterior chest wall,

but the nature is said to be simple. Therefore, she does not corroborate to

the testimony of PW 2 Mohammad that Mohammad was unconscious after

the incident. PW 4 Dr. Rubina in her cross-examination has stated that

injuries noted by her in Exhs.19 and 20 are possible by self infliction. She

has not explained as to why the admission for eight days was prescribed

when the injuries were simple. Therefore, the medical evidence is also not

supporting the ocular evidence. PW 5 Feroz is the relative of informant and,

therefore, bound to support him. His testimony is unbelievable. PW 13 Isaq

has also stated in his cross-examination that he never disclosed about the

8 Cri.Appeal_130_2016_Jd

history in Government Hospital, Parbhani. PW 14 Dr. Suryakant Deshmukh,

who had examined Mohammad Isaq says that there was injury to the right

palm. He found in the extensor of wrist joint and thumb was absent and the

injury was grievous in nature. It has not been extracted from the witness in

his examination-in-chief as to what kind of treatment was given to Isaq Khan.

Still he says that if the timely treatment would not have been given, the

injuries would have caused permanent disability of that limb to Isaq. He says

that the injury was grievous in nature, but as regards Isaq is concerned, the

charge was under Section 324 of the Indian Penal Code, which requires

simple injuries. It has come on record that the incident has taken place in the

evening and many people had gathered. Still no independent witness has

been examined. There were many lacunas in the investigation and,

therefore, the learned Trial Judge ought to have come to the conclusion that

the offence has not been proved beyond reasonable doubt.

8 The learned APP for the prosecution supports the reasons given

by the learned Trial Judge. The ocular evidence of PW 1, 2 and 13 stood

corroborated by the other evidence. Merely because PW 2 Mohammad came

to know about the death of his brother Ajmat after about eight days, it cannot

be said that Mohammad would not have been present at the spot, he has not

received injuries and, therefore, as regards Section 302 of the Indian Penal

9 Cri.Appeal_130_2016_Jd

Code is concerned, the prosecution has proved the offence beyond reasonable

doubt. The probable cause of death as per the autopsy report is, "due to

haemorrhagic shock secondary to lung laceration and with haemothorax".

Use of the weapon like knife and stabbing is definitely give the knowledge

that accused wanted to kill Ajmat and if the injuries caused to Mohammad

would not have been treated within reasonable time, then he would have

succumbed to the injuries. In fact, there was no reason for Isaq to go in

between but still when he went to rescue the injured and deceased, he was

also assaulted by the present appellant. When all these things have been

done with knowledge and then the murder weapon has been discovered by

the present accused, then it cannot be said that any illegality or error has

been committed by the learned Trial Judge in convicting the appellant. The

appeal deserves to be dismissed.

9 After taking note of submissions on both sides, we would like to

re-appreciate the evidence which is within the powers of the Appellate Court.

From the testimony of PW 1 Sami - the informant, it can be seen that he

wanted to pose himself as an eye witness. In examination-in-chief he has

stated about the incident that had taken place in the morning around 11.00

a.m. of 29.04.2013. It was the dispute between his wife and his niece

Munnibee. He has not stated, as to on what count they had fought, but in

10 Cri.Appeal_130_2016_Jd

the First Information Report he says, it was on account of placing of stone on

the drainage in front of the house (?kjkleksjhy ukyhoj nxM Bso.;kps dkj.kko:u).

Thereafter, he says that around 6.00 p.m. on the same day the accused was

abusing his son Ajmat. He himself was at a distance of about 10 feet and that

the accused was threatening Ajmat that he would assault him with knife.

The informant went to rescue Ajmat and while he was taking his son by the

side, accused gave blow of knife on back of his son and his son died on the

spot. If we consider his First Information Report, he has stated that accused

was abusing his son in front of the house, at that time, Ajmat went near him

and asked him not to abuse, at that time, accused took out knife and by

saying that he would kill him, he had given blow to the right side of the back.

It is stated that accused had stabbed Ajmat with knife. Thus, the story in

First Information Report as well as his examination-in-chief differs. Further,

the natural question would be, when a person is asking another or making

request, he would be facing the person to whom the request is made. The

back side of the person will not be reachable to the person assaulting. Now,

in examination-in-chief, as aforesaid, he says that he was taking the stone by

the side and in that process the blow was received by his son on the back.

Thus, this contradiction will have to be considered in favour of the accused.

Another fact to be noted is that in the examination-in-chief he has not at all

stated, where exactly the incident had taken place, but from the First

11 Cri.Appeal_130_2016_Jd

Information Report Exh.12, it appears that it had taken place in front of his

house. At this stage itself if we consider the spot panchnama Exh.29 and the

rough map drawn on the same, then there is no house of the informant

nearby the spot of incident. Even PW 2 Mohammad has also not specifically

stated where exactly the incident has taken place. He has stated that he was

coming from Namaj and he as well as his friends were standing in Khandoba

Bazar, at that time accused was watching him in anger and, therefore, he had

asked accused, why he is staring at him and then accused started abusing,

Ajmat intervened and then accused gave blow of knife to Ajmat. Thus, he

gives a different place and also a different story. Before proceeding further,

as regards PW 1 Sami is concerned, he has not given any reason as to why

the accused was abusing Ajmat. The connection between the morning

incident and the evening incident is not at all established. Further, the

conduct of the father is unbelievable. In his First Information Report he has

stated that he along with his friends had taken the dead body of Ajmat and

the two injured persons in auto rickshaw to hospital, but in the examination-

in-chief he has conveniently stated that he felt giddiness and did not

accompany the dead body as well as the injured person. The point of delay

in lodging the First Information Report may not be appealing, as alleged

delay is of two hours only, but still the conduct on the part of PW 1 Sami is

required to be considered. His examination-in-chief as well as the First

12 Cri.Appeal_130_2016_Jd

Information Report Exh.12 would give a clear picture that he was under the

impression that Ajmat expired on the spot. In spite of death of his son how

he could not have accompanied both the sons to the hospital, is a question,

and no satisfactory answer/explanation has been given by PW 1 Sami. It will

not be out of place to mention here that at one place in examination-in-chief

he says that he had carried his son at hospital, but at the another place in the

examination-in-chief itself he has stated that his sons had carried injured to

hospital and then he went to hospital at 7.00 p.m. This

contradiction/anomaly has been created in the examination-in-chief itself

and there is no attempt by the prosecution to get clarification in respect of

the same. In the cross-examination, however, he has categorically stated that

he had not accompanied to Ajmat in auto rickshaw to hospital. He has stated

in the First Information Report as well as in examination-in-chief that certain

other persons were also present at the spot and who had tried to rescue

Ajmat from the clutches of accused. However, none of them has been

examined by the prosecution for the reasons best known to it. Therefore, his

testimony is unbelievable.

10 PW 2 Mohammad is the brother of deceased Ajmat/son of PW 1

Sami and injured. As aforesaid, he has stated when he was coming from

Namaj along with friends and was standing in Khandoba Bazar, accused was

13 Cri.Appeal_130_2016_Jd

staring at him in anger and, therefore, he asked as to why he is staring at

him. Accused started abusing. Ajmat asked accused, as to why he is abusing,

then accused gave blow of knife to Ajmat. Therefore, Mohammad rushed.

Accused gave blow of knife on Mohammad's chest and left thigh. Accused

also gave blow of knife on the right hand of Isaq Khan, who is friend of

Mohammad. According to this witness, the incident took place as a stone

was kept on the village drainage. Again at the costs of repetition, it is to be

noted that when the said act of keeping the stone on the drainage had taken

place, who had done it, has not been brought on record by the prosecution.

What was the connection between the morning incident and the evening

incident is not stated by PW 2 Mohammad also. In the examination-in-chief

itself he has also made contrary statements. At one place he says that

accused had assaulted him by knife on his chest as well as on the left thigh

and at another place he takes the name of juvenile - brother of the accused

and says that the minor had given blow of knife on his left thigh. He then

says that he had become unconscious in the hospital. It has been rightly

pointed out by the learned Advocate for the appellant that the statement of

this witness has been recorded belatedly and no proper explanation is coming

from the Investigating Officer. Further, the place of incident given by this

witness is different than in the testimony of PW 1 Sami and First Information

Report. In the cross-examination he has stated that since two months prior to

14 Cri.Appeal_130_2016_Jd

the date of incident Ajmat was residing separately in Amim colony, then, the

question arises - what was the reason for Ajmat to be at home where PW 1

Sami and PW 2 Mohammad were residing. No doubt, they are his father and

brother and he can visit his house at any time, but still when he is residing

separately from them, there should be some reason as to why he would have

come to meet his parents and brothers. It has come on record that Ajmat was

doing the business of fodder, so also PW 1 Sami, but PW 2 Mohammad says

that he was not in the business of fodder selling and, therefore, it appears

that he says that when he was returning from Namaj, the incident has taken

place. From the testimony of this witness also it can be seen that many

persons had gathered at the spot, but none of them has been examined by the

prosecution. Another fact to be noted from his cross-examination is that he

has denied that he had given history at the time of admission. The question

would be then, who has given. Prosecution has examined PW 4 Dr. Rubina,

who had examined PW 2 Mohammad as well as PW 13 Isaq. In her entire

examination-in-chief she has not disclosed that when Mohammad was

brought to hospital he was in unconscious state. There is no record produced

by the prosecution to prove that how many days PW 2 Mohammad was

admitted in the hospital. If those details would have been given, that would

have been the answer to the point of delay in recording the statement under

Section 161 of the Code of Criminal Procedure. In his examination-in-chief

15 Cri.Appeal_130_2016_Jd

PW 2 Mohammad has stated that after receiving the injuries he had become

unconscious, but in his statement under Section 161 of the Code of Criminal

Procedure he has admitted that while recording his statement he had not

stated before the police that he was unconscious. When this is the material

improvement and rather corroborated by the medical evidence that he was

not unconscious, then there ought to have been explanation from the

Investigating Officer regarding the delay in recording the statement under

Section 161 of the Code of Criminal Procedure. He had sufficient time to

improve the story also. When he himself had not given the history of assault

and also the fact that he was not accompanied by PW 1 Sami, then, who had

given the said history to PW 4 Dr. Rubina, is a question, because the medical

certificate shows that he had received injuries. Therefore, the testimony of

this witness is also untrustworthy.

11 PW 13 Isaq Khan is the injured witness. He has deposed almost

on the same line of PW 2 Mohammad. PW 13 Isaq in his testimony has

stated that there was dispute between accused, deceased and his father and

brother on account of keeping stones on drainage line. That means, this

witness was not even knowing as to for what purpose the abuses had taken

place before assaulting deceased as well as he himself and PW 2 Mohammad.

PW 13 Isaq has stated that he was coming from offering Namaj around 5.30

16 Cri.Appeal_130_2016_Jd

p.m. on 29.04.2013. He saw that the accused was abusing deceased and

then accused giving blow of knife on the back of deceased. He says that he

himself as well as Mohammad went to rescue, but at that time accused gave

blow of knife on his right hand. When he was rescuing deceased, accused

gave blow of knife on the right hand of Isaq. He has stated that initially he as

well as Mohammad were shifted to Government Hospital and then he was

shifted to Parbhani ICU Hospital. The record would show that there is some

endorsement by the Doctors regarding the unconsciousness and unfitness of

the present witness PW 13 and even if we give concession; yet, there is

considerable delay in taking his statement under Section 161 of the Code of

Criminal Procedure. PW 2 and 13 are almost denying the fact that Ajmat had

expired on the spot. It is also to be noted that he has also not stated that he

had given history to the Government Hospital or to Parbhani ICU Hospital.

Then, again question will come, who had given that history. The position of

the private Doctors as well as the Government Hospital authorities in not

taking down that history from the patient, who were in conscious state, is not

understandable. Nobody else can give the history than the victim himself.

Both of them have not supported the statement in the First Information

Report that Ajmat expired on the spot. Therefore, his testimony is also

unbelievable.

                                         17                             Cri.Appeal_130_2016_Jd



12              The testimony of PW 4 Dr. Rubina would show that she had

examined PW 2 and 13 and she has proved Medico Legal Certificates Exhs.19

and 20. It is stated in the said certificates that those injuries sustained by

both of them are simple. If they both had sustained simple injuries, what was

the need for her to admit them and the admission is for a considerable

period. As regards treatment to PW 2 Mohammad is concerned, the treating

Doctors from the Civil Hospital have not been examined. PW 14 Dr.

Suryakant Deshmukh is the Medical Officer from Parbhani ICU Care Hospital

where PW 13 Isaq was admitted. He says that he found the injury on the

person of Isaq is, "suture wound on dorsal and radial aspect of right fore

arm". Further examination showed that in the extensor of wrist joint and

thumb, there was major injury and then he carried out the operation. He

then says that the injuries were grievous in nature. When one Doctor had

found it simple, how the another Doctor can find it to be grievous, is a

question. According to the cross of PW 4 Dr. Rubina, the injuries mentioned

in Exh.20 i.e. injuries to Mohammad can be self inflicted also and she also

states that injury mentioned in Exh.19 i.e. the injury certificate of Isaq can be

self inflicted. No further clarification has been sought by the prosecution,

when there was some contradiction in examination-in-chief and the cross.

13              Next in line is PW 7 Kapil, who is the auto rickshaw driver, who





                                       18                              Cri.Appeal_130_2016_Jd



had taken Ajmat and Mohammad in his auto rickshaw to hospital.                         His

examination-in-chief would show that Imran had come to call him and when

they both went to Kadbi Mandi (fodder market), he had carried Ajmat and

Mohammad in his auto rickshaw. He does not say that they were taken from

the place near the house of PW 1 Sami or they were in front of their house

when they boarded his rickshaw. Therefore, the place of incident from his

testimony also is different and in his cross-examination he says that about

200 persons had gathered at the spot.

14 PW 8 Dr. Shaker Karim is the autopsy surgeon. He had found

single stab wound over left back at the level of fourth thoracic vertebra 5

c.ms. lateral to mid line of right side and the dimensions were 4 c.ms. X 1.5

c.ms. X 17 c.ms. deep, communicating with the pleural cavity directed

anteriorly and inferiorly towards right side. He has given the cause of death

as, "due to haemorrhagic shock due to lung laceration with haemothorax".

He has also stated that the injury was possible by Article No.6 i.e. knife. Even

if we say that the accused has not brought any evidence to discard the

testimony of this witness; yet, the other facts will have to be considered as to

whether the knife which has been recovered in this matter was the murder

weapon and whether the said discovery can be considered at all.

                                         19                             Cri.Appeal_130_2016_Jd



15              PW 5 Feroz is the panch to the discovery panchnama. Though

he has proved memorandum panchnama Exh.27, in his cross-examination he

has admitted that his maternal sister is given to the brother of deceased.

That means, he appears to be a relative. Merely because he is relative he

cannot discard the evidence. But it will have to be seen whether any such

discovery was made by the accused before this witness or not. The cross-

examination is too technical and we do not find that there is any point in

discarding the testimony of this witness. Even if we hold that the accused

has discovered the said weapon i.e. knife; yet, whether the prosecution was

able to prove the guilt of the accused beyond reasonable doubt, is still a

question.

16 PW 12 is the Investigating Officer, who has not explained the

delay in recording the statements of witnesses. He has given the account of

the investigation, he has carried out. The question still remains is, as to how

the present accused could have discovered knife which was allegedly used by

the juvenile.

17 Though the fate of the charge sheet of the juvenile has not been

brought on record, as to whether still it is pending or it has already been

decided; yet, as per the prosecution story, it had invoked Section 34 of the

20 Cri.Appeal_130_2016_Jd

Indian Penal Code. Why the juvenile would have got himself involved for the

same intention the present accused had while committing the offence, is a

question. Presence of juvenile is not stated by PW 1 in his examination-in-

chief, but when Article No.7 knife was shown to him, he says, it was in the

hand of juvenile. PW 13 Isaq only says about presence of the juvenile and

not attributes any further role. Thus, there is variance between these eye

witnesses in respect of involvement of juvenile. This variance ultimately

affects the entire prosecution story.

18 In the present case the evidence of eye witnesses and the injured

persons themselves is unbelievable and untrustworthy. There was no motive

for the accused to commit any offence as alleged. The place is shown

different and the conduct of the witnesses is doubtful, statements of the

injured were recorded belatedly. On these grounds the learned Trial Court

ought to have given benefit of doubt to the accused. When the prosecution

evidence is not inspiring confidence, then definitely the Courts have to

consider giving benefit of doubt. Because doubts are created in view of the

major shortfalls in the evidence of the prosecution. The findings arrived at by

the Trial Court is perverse. It is not merely because two views are possible,

this Court is taking the second view, but the glaring lacunas have not been

considered by the Trial Court. The conviction to the appellant, therefore,

21 Cri.Appeal_130_2016_Jd

deserves to be set aside by allowing the appeal. Hence, following order.

                                        ORDER


1                The appeal stands allowed.

2                The conviction awarded to appellant/accused Shaikh Musa s/o

Shaikh Yakub in Sessions Trial No.119/2013 by learned Additional Sessions

Judge, Parbhani on 12.01.2016 after holding him guilty for committed an

offence punishable under Section 302, 307, 324 of the Indian Penal Code,

1860 stands quashed and set aside.

3 Accused Shaikh Musa s/o Shaikh Yakub stands acquitted of the

offence punishable under Section 302, 307, 324 of the Indian Penal Code.

He be set at liberty, if not required in any other case.

4 The fine amount paid/deposited, if any, be refunded to the

accused/appellant after the statutory period.

5 We clarify that there is no change as regards the order of

disposal of muddemal.

6                Pending application, if any, stands disposed of.




(Y.G. Khobragade, J.)                            ( Smt. Vibha Kankanwadi, J. )

agd