[Cites 3, Cited by 0]
Bombay High Court
State Of Mah. Thru. Pso Babhulgaon vs Sk. Hussain Salabatkhan Pathan on 27 January, 2026
Author: Anil L. Pansare
Bench: Anil L. Pansare
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH AT NAGPUR
CRIMINAL APPEAL NO.582/2008
State of Maharashtra through
Police Station Officer, Police Station,
Babhulgaon, Dist. Yavatmal. ...APPELLANT
...V E R S U S...
Sk. Hussain Salabatkhan Pathan,
aged about 30 years, r/o Mitnapur,
Tq. Babhulgaon, Dist. Yavatmal. ...RESPONDENT
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Mr. A. J. Gohokar, A.P.P. for appellant.
Mr. V. D. Darne, Advocate for respondent.
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CORAM:- ANIL L. PANSARE AND NIVEDITA P. MEHTA, JJ.
DATE : 27.01.2026
ORAL JUDGMENT (Per: Anil L. Pansare, J.)
Appellant - State has filed present appeal taking exception
to judgment and order dated 13.03.2008 passed by Ad hoc Additional
Sessions Judge, Yavatmal in Sessions Trial No.46/2006, thereby
acquitting the respondent for the offence punishable under Section 307
of the Indian Penal Code, 1860 ("IPC").
2. Respondent was tried for the offence punishable
under Section 307 of the IPC for assaulting one Khatunbi w/o
Sk. Babbu, by axe with an intention to cause her death.
Prosecution's case is that on 16.04.2006, between 06:30 to 07:00 p.m.,
when mother of the informant was sitting in the house, the
respondent came from behind and assaulted her with an axe owing to
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which the said Khatunbi fell down and sustained bleeding injury. The
complainant came to know that due to the previous enmity, respondent
committed the assault. Complainant lodged the FIR on the very same
day at 09:45 p.m. at Police Station, Babhulgaon, on which, offence
under the IPC was registered. Investigating Officer collected evidence
and filed charge-sheet. The respondent pleaded not guilty and claimed
to be tried.
3. In support of its case, the prosecution examined 9
witnesses. Defence of the respondent was of total denial and of false
implication. Trial Court considered all attending circumstances and
acquitted the respondent, finding that the prosecution failed to lead
cogent evidence. This finding is challenged before us.
4. We have heard Mr. A.J. Gohokar, learned A.P.P. for the
appellant-State and Mr. V.D.Darne, learned counsel for the respondent.
We have gone through the impugned judgment, documents, evidence
etc. We will refer to the same to the extent necessary to decide
following points that arise for our consideration. We have recorded our
findings, thereon for the reasons to follow.
Sr.No. Points Findings
1. Whether prosecution proved that In the Negative
respondent-original accused assaulted the
victim with an intention to kill her or with
knowledge that such an assault might cause
death?
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2. Whether the Sessions Court has committed In the Negative
illegality while appreciating the evidence
led by the prosecution leading to a perverse
finding?
3. Whether interference is called for in the In the Negative
impugned order?
4. What order? As per final order.
As to point Nos. 1 to 3:
5. All points are interlinked and hence are decided by common
reasons. We may summarize the reasons assigned by the Sessions Court
to acquit the respondent;
(i) The prosecution failed to examine independent
witness though available and relied upon the testimony of close
relatives of the injured.
(ii) The testimony of PW1 injured, on identification of
appellant, is not worthy of credit. The incident occurred at about
07:00 p.m. She was assaulted from backside. She immediately
became unconscious making her identification doubtful. Most
importantly, when history of assault was recorded by Doctor PW8,
the name of assailant is not disclosed.
(iii) The earliest version of the incident recorded at
Babhulgaon Hospital immediately after the incident, was not
produced on record causing serious prejudice to the prosecution
case.
(iv) Though the witness stated that police recorded their
statements at the hospital and obtained thumb impression, such
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FIR or statements were withheld, which amounts to suppression
of vital evidence.
(v) Most of the eye witnesses reached the spot after
incident and hence their testimony is hearsay.
(vi) Evidence on seizure of weapon i.e. axe is extremely
doubtful. PW3 stated that axe was lying at the spot, whereas PW4
Pancha and PW9 Investigating Officer, claimed recovery at the
instance of the respondent from his house. Moreso, seizure
panchanama of weapon does not bear signature or thumb
impression of the respondent, rendering the recovery doubtful
and unreliable.
6. These, amongst others, are important reasons assigned by
the Trial Court to acquit the respondent. Accordingly, we called upon
learned A.P.P. to show us from the evidence of any witness that the
finding so recorded suffers from perversity.
7. Learned A.P.P. submits that PW1 is the victim. Her
testimony is sufficient to bring home the guilt of the respondent. She
deposed that she knows the respondent since last 17 years. On the day
of incident, he was under the influence of liquor. He came to her pan
stall and abused her and threw chairs, due to which she lodged report
at Babhulgaon Police Station. After returning home while she and her
family members were present, the respondent again came, threatened
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her for filing report, went to his house, brought axe and assaulted her
on the left side of head, causing bleeding injury. After assault, he ran
away with the axe and she fell down unconscious. In the cross-
examination, she admitted that at the time of incident, Jumagya
(circumcision) function was taking place at Shaukat Mulla's house and
that procession was going on. She, however, admitted that nobody was
present at the spot of the incident. She also admitted that she received
blow from behind and immediately fell down. She then deposed that
her statement was recorded at Yavatmal hospital. The defence then
brought on record the omission of respondent threatening her.
8. Thus, her evidence show that she was assaulted from
behind and she fell down immediately. Her statement, that was
recorded at the hospital, is not placed on record. Thus, the Trial Court
rightly held that vital piece of evidence was withheld. The basis of
assault that respondent threatened her of dire consequences is found to
be an omission. These facts coupled with the testimony of PW8 Doctor
that while recording history of assault the name of respondent was not
informed, will affect the credibility of PW1's testimony, at least on the
point of identification.
9. PW2, 3 and 5 (son of PW1) and PW6 who were said to be
eye witnesses have, in cross-examination, admitted that they reached
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the spot after the incident. Thus, none of these witnesses have seen the
incident. PW5, however, has deposed about the first part of the
incident that led to filing complaint against the respondent. However,
on the point of assault, though he blamed the respondent, he admitted
in the cross-examination that he and his family reached the spot after
the attack and found PW1 lying unconscious on the ground.
10. Thus, Trial Court has rightly held that these witnesses have
not seen incident and their testimony, blaming the respondent for the
assault, is hearsay.
11. PW4 is pancha witness to the discovery of weapon under
Section 27 of the Indian Evidence Act, 1872. The weapon was
discovered from the respondent's house. PW3, however, deposed that
the weapon was lying at the spot. Thus, the Trial Court has rightly held
that the evidence in this regard is doubtful and unreliable. PW7 is
Police Constable, who carried muddemal to Forensic Sciences
Laboratory. His evidence is not significant. PW8 is investigating officer
who deposed about the manner in which he collected the evidence.
12. The above evidence, in our considered view, is not sufficient
to prove the involvement of respondent in the crime. View taken by the
Trial Court is a possible view, which does not call for interference in the
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light of the principle of law that the finding of acquittal should not be
upset because a different view is possible. As such, in the present case,
a different view is not possible, the evidence, at the most, will give rise
to the suspicion of respondent's involvement, which in itself is not
sufficient to hold him guilty of the crime. Accordingly, point Nos.1 to 3
are answered in the negative.
As to point No.4:
13. Having answered point Nos. 1 to 3 in the negative, we find
no merit in the appeal. Point No.4 is answered accordingly.
The appeal is dismissed.
(Nivedita P. Mehta, J.) (Anil L. Pansare, J.)
kahale
