Citation Codes

Equivalent Citations

citation codes

Case Number

Criminal Appeal No. 489 of 2005,

Judges

SAMBHAJI SHIWAJI SHINDE

Acts

section 9 of the Indian Evidence Act.
Section 324 r.w. 34 of I.P.C.
Section 307 r.w. 34 of I.P.C.
u/s 9 of the Evidence Act.
section 34 of I.P.C.

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Smart Summary

Structured Summary of the Judgment (dated 14 January 2011)

Factual and Procedural Background

This appeal was preferred by the appellant challenging the judgment and order dated 16.5.2005 of the learned Additional Sessions Judge, Ahmednagar in Sessions Case No.112 of 2004, whereby the appellant was convicted for the offence punishable under Section 324 read with Section 34 of the Indian Penal Code and sentenced to rigorous imprisonment for one year and to pay a fine of Rs.500/-, in default three months' simple imprisonment.

The prosecution story, as narrated in the trial court, is that on 29th February 2004 at Ban Pimpri near Shubham Dhaba the complainant P.W.1 Dilip Arjun Pathare and others were attacked by a group who arrived in a Tata Sumo. Several persons, including Arjun Uttam Pathare and Suresh Uttam Pathare, and others armed with an iron dagger called "Sattur", allegedly assaulted the complainant and others. Two persons were said to have been caught on the spot and taken to hospital; other accused were shown as absconding. The initial charge-sheet contained an offence under Section 307 read with Section 34 IPC; the appellant was ultimately tried separately and the trial court acquitted him of Section 307 r.w. 34 but convicted him under Section 324 r.w. 34 IPC.

During the trial the prosecution examined 12 witnesses, including eyewitnesses, panch witnesses, the Medical Officer (P.W.8) and the Investigating Officer (P.W.12). The trial court returned the conviction and sentence noted above. The present appellate court heard arguments of counsel for the appellant and the A.P.P. for the State and has set aside the conviction and acquitted the appellant.

Legal Issues Presented

Whether the prosecution proved the guilt of the appellant beyond reasonable doubt for the offence under Section 324 r.w. 34 IPC in the face of (a) absence of prior acquaintance between appellant and witnesses, (b) absence of an identification parade under Section 9 of the Evidence Act, and (c) delay and inconsistencies in evidence?
Whether the alleged recovery of the weapon ("Sattur") at the instance of the appellant (on 8th March 2004) was reliable and, if not, whether the lack of a proven recovery vitiates the prosecution case against this appellant who was one of several accused said to be armed?
Whether the Investigating Officer's (P.W.12) statements and conduct (including inconsistent dates of arrest/discharge and statements about recovery) are trustworthy and sufficient to support the prosecution story?
Whether the medical evidence and Chemical Analyzer (C.A.) report sufficiently corroborate the prosecution's version as to the role of the appellant?
Whether the trial court properly appreciated evidence and applied legal principles (including benefit of doubt and requirement to attribute overt acts to each accused under Section 34) before convicting the appellant?

Arguments of the Parties

Appellant's Arguments

The appellant challenged the investigation and trial on multiple grounds: no test identification parade was held under Section 9 of the Evidence Act despite the appellant being unknown to witnesses;
Prime prosecution witnesses (P.W.1, P.W.3, P.W.4 and P.W.7) were close relatives or otherwise interested witnesses;
The recovery of weapons was belated (four days after the incident), and the recovery was not proved—there were contradictions between P.W.3 (panch witness) and P.W.12 (Investigating Officer); the learned Sessions Judge also held that recovery from appellant was not proved;
Medical evidence (P.W.8) contradicts aspects of the complainant's account about the location and nature of injuries; there were inconsistencies between P.W.1 and P.W.4;
Investigation was flawed and there were delays and procedural lapses; admissions, omissions and contradictions in prosecution evidence created reasonable doubt;
The appellant pointed out he had been detained and given set-off for period 4.3.2004 to 11.5.2004 and that he denied involvement in the incident in his statement under Section 313 Cr.P.C.

Respondent (State)'s Arguments

The A.P.P. relied on the evidence of eyewitnesses and the medical evidence and C.A. report, submitting that the eyewitness and medical evidence corroborate the prosecution version;
The State submitted the appeal was without merit and should be dismissed.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
Ganesh s/o Godruji Uikey and Anr. Vs. State of Maharashtra, 2007 ALL MR (Cri.) 3076	Delay in recording statement of an eyewitness can be fatal to prosecution if there is no satisfactory explanation for the delay.	The court relied on this authority to observe that delay in recording P.W.4's statement (recorded on 8th March 2004 though the incident occurred on 29th February 2004) without satisfactory explanation weakens the prosecution case.
Balakrushna Swain Vs. The State of Orissa, AIR 1971 SC 804	Delay in recording statement of an eyewitness may render the statement suspect where no satisfactory explanation is given.	The court referenced this Supreme Court authority to support the proposition that unexplained delay in recording eyewitness statements adversely affects the prosecution; the court applied that reasoning to the facts of the case.

Court's Reasoning and Analysis

The appellate court conducted a detailed appraisal of the trial evidence, focusing on credibility, consistency and legal sufficiency. The court's reasoning proceeded by reference to the following principal factual and evidential points (drawn from the record and witnesses as narrated in the judgment):

Credibility of Investigating Officer (P.W.12): the IO's testimony contained inconsistent statements about dates when the appellant was in hospital, discharged and arrested. In examination-in-chief the IO stated the appellant was discharged on 7th March and then arrested, but the Medical Officer (P.W.8) and other evidence showed the appellant was discharged on 4th March and arrested that day. The court found the IO's examination-in-chief statement to be a calculated attempt to cover the prosecution story and thus not trustworthy.
Recovery of weapon: the prosecution's account that the appellant led police to the weapon on 8th March (recovery at the instance of appellant) was inconsistent with the prosecution's own story that the appellant had been caught on the spot on 29th February. The court characterized the alleged recovery from the bridge area on 8th March as an afterthought and a concocted story; the trial court itself had found no proved recovery from the appellant. The appellate court emphasized that where multiple accused are alleged to have been armed, a proven recovery from each accused is important to attribute overt acts.
Identification and relation between parties: the evidence showed the appellant was not known to the witnesses prior to the incident; several witnesses admitted that a large proportion of the village shared a common surname and that key witnesses were related or had village political interests. The court found force in the appellant's contention that an identification parade under Section 9 of the Evidence Act ought to have been held.
Medical evidence and chaos at scene: the Medical Officer (P.W.8) recorded multiple incised and contusion injuries on the complainant and on other injured persons, and also injuries on the appellant consistent with blunt force. Crucially, P.W.8 opined that several injuries could have been caused by falling on or being struck by sharp stones and that the complainant did not have the specific knee injury as stated in his complaint. Evidence of stone pelting and chaos at the scene, darkness (sunset at about 6 p.m.) and repair material on the road suggested chaotic circumstances inconsistent with the precise prosecution story of coordinated assaults by identified persons.
Delay in recording statements: the court relied on authorities (cited in the judgment) that unexplained delays in recording eyewitness statements are damaging to the prosecution. The statement of an injured eyewitness (P.W.4) was recorded days after the incident, and no satisfactory explanation was provided, thereby weakening the prosecution's case.
Failure to explain injuries on the appellant: the prosecution did not investigate or explain how the appellant sustained injuries which were proved on his person by the medical evidence; the IO did not register or explain these injuries and thus did not discharge the prosecutorial obligation to account for them.
Inability to attribute overt acts: given the absence of a proven recovery against the appellant and the inconsistencies and omissions in witness evidence, the court concluded that the prosecution could not attribute specific overt acts to the appellant among several accused who were alleged to be holding similar weapons. Without attribution of overt acts and intention specific to the appellant, conviction under Section 34 (common intention) cannot be sustained.
Overall assessment and benefit of doubt: the appellate court found material contradictions, omissions and exaggerations in the prosecution evidence, and that the prosecution story as to the appellant was far from the truth. Applying the settled principle that when there is room for doubt the benefit must go to the accused, the court concluded the prosecution failed to prove guilt beyond reasonable doubt.

Holding and Implications

Holding:

The appeal is allowed; the impugned judgment and order dated 16.5.2005 convicting the appellant for the offence punishable under Section 324 r.w. 34 of the Indian Penal Code and sentencing him to R.I. for one year and a fine of Rs.500/- (i/d S.I. for three months) is quashed and set aside, and the appellant Faijal Hamidkhan Noor Mohmad Shah @ Pathan is acquitted of the charge.

Direct consequences and directions:

The appellant's conviction and sentence as set out above are quashed and he is acquitted.
The order dated 15th February, 2008 passed by this Court directing the Sessions Court to issue a warrant for the arrest of the appellant shall not be executed and such warrant is cancelled.
The court expressly limited its observations and findings to the appellant alone and directed that nothing in this judgment shall be relied upon in the trials of the other absconding co-accused; the trial of the absconding three accused persons was not completed and the observations were made only in respect of this appellant.

Broader implications: The judgment emphasizes well-established principles — the necessity of reliable identification procedures where the accused was unknown to witnesses, the significance of timely recording of eyewitness statements, the requirement to prove recoveries and to explain injuries on accused persons, and the rule that in the presence of reasonable doubt the accused must be given the benefit. The opinion does not purport to lay down novel legal doctrine but applies existing authorities to the facts of this case.

Prepared from the judgment dated 14 January 2011 as provided. All factual and analytical statements above are limited to material expressly contained in the provided opinion.

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Mumbai v. The State Of Maharashtra

DATE : 14th JANUARY, 2011.

1. The appellant has preferred this appeal challenging the judgment and order dated 16.5.2005 passed by learned Additional Sessions Judge, Ahmednagar in Sessions Case No.112 of 2004 crapl489.05 thereby convicting the appellant for the offence punishable under Section 324 r.w. 34 of I.P.C.

and sentencing him to suffer R.I. for one year and to pay a fine of Rs.500/-, i/d S.I. for three months.

2. The prosecution story, in brief, is as follows:

P.W.1 Dilip Arjun Pathare happens to be a jeep driver, resident of Ban Pimpri. He owns Commander Jeep No.MH-04-A-7141. P.W.1 Dilip, after his daily work came to Ban Pimpri at 7 p.m. near Shubham DhaBa. He was talking with P.W.4 Arun Mohan Pathare. P.W.6 Pandurang Pathare was sitting in his tea stall. One Hanumant Pathare and Pandurang Kakade were sitting on the bench.

At about 7.15 p.m., one Tata sumo Jeep came. One Arjun Uttam Pathare emerged from the said jeep and assaulted P.W.1 Dilip by means of iron dagger locally called as "Sattur". He tried to catch said Arjun. However, one Suresh Uttam Pathare assaulted him by means of dagger on his crapl489.05 left hand wrist. While scuffle between him and said Suresh and Arjun was going on, two other persons came armed with dagger. One of them assaulted him by means of dagger on his right hand. P.W.4 Arun tried to rescue him. However, Suresh and Arjun assaulted him by means of "Sattur". The names of two persons were disclosed ig as accused Faijal Hamidkhan and one Raju Jogindar who were caught on the spot by the people. The injured and those two persons including accused were taken to hospital.

3. P.W.1 Dilip lodged the complaint and crime was registered by the police. After necessary investigation, the charge-sheet for the offence punishable u/s 307 r.w. 34 of I.P.C. was filed against the accused before the J.M.F.C., Shrigonda, who in turn committed the case to the Court of Sessions, Ahmednagar, the offence charged being exclusively triable by the Court of Sessions.

4. As per the charge-sheet, accused Suresh Pathare and Arjun Pathare were shown as crapl489.05 absconding while accused Faijal and Raju Yogendra were sent for trial. However, Raju Yogendra absconded and could not be traced. Therefore, the trial of the present appellant was separated from the trial of Raju Yogendra. Charge was framed against the present appellant / accused, to which he pleaded not guilty and claimed to be tried.

5. The igprosecution examined in all 12 prosecution witnesses. The learned 3rd Ad-hoc Addl. Sessions Judge, Ahmednagar, after appreciation of the evidence brought on record, convicted and sentenced the appellant as aforesaid.

8. Heard the learned Counsel for the appellant and the learned A.P.P. for the State.

7. The learned Counsel for the appellant submitted that the appellant is the original accused in CR No.50/2004 registered with Shrigonda Police Station for offence punishable under Section 307 r.w. 34 of I.P.C. Along with crapl489.05 the appellant, three other accused were involved in the said crime. However, as all the three accused were absconding, the appellant alone was tried by separating the trial and ultimately, convicted and sentenced as stated above. He further submits that the appellant has been given set of for his detention from 4.3.2004 to 11.5.2004.

8. The learned Counsel for appellant submitted that as per prosecution case, near Shubam Dhaba, the complainant and his friends were chitchatting and four persons came there with Sattur like weapons and attacked the complainant and his friends. The present appellant was not named and was referred to as an unknown person. In spite of the same, no any test identification parade was held as per section 9 of the Indian Evidence Act. He further submitted that the prime witnesses namely, P.W.1, P.W.3, P.W.4 and P.W.7 were close relatives of each other and were interested witnesses. The Counsel further submitted that the recovery of weapons was at crapl489.05 belated stage i.e. after four days and the same was not proved as there were contradictions in the evidence of P.W.3 Panch witness and P.W.12 Investigating Officer. Even, the learned Sessions Judge has specifically held that the recovery of weapon at the hands of the appellant was not proved.

9. So far as medical evidence is concerned, the learned Counsel for appellant submitted that the evidence of P.W.8 Medical Officer suffers from contradictions with the evidence of the complainant about his injuries. He further submits that the evidence of P.W.1 Complainant Dilip contradicts with the evidence of P.W.4 Arjun (eye witness).

The Counsel for appellant submitted that the investigation in the present crime was utterly erroneous for not holding test identification parade, for not proving the recovery of weapon, and delay in procedural aspects. He has also pointed out admissions and omissions in the crapl489.05 evidence of prime prosecution witnesses had clearly disproved the prosecution case and as such, benefit of doubt should have been given to the present appellant.

10. On the other hand, the learned A.P.P.

appearing for the respondent State invited my attention to the evidence of eye witnesses to the incident and also the C.A. Report and submitted that the evidence of the complainant and P.W.4 is corroborated by the medical evidence and C.A.

Report. He, therefore, submitted that this appeal is devoid of any merits and the same deserves to be dismissed.

11. With the assistance of the learned Counsel for the appellant and the learned A.P.P., I have perused the grounds in the appeal memo, annexures thereto, the impugned judgment and the record & proceedings made available for perusal of this Court. It is not necessary to narrate the entire evidence of the witnesses. P.W.1 Dilip Arjun Pathare, who is complainant, has stated in the crapl489.05 complaint that the appellant herein assaulted by weapon "Sattur" on backside of his right leg, on the portion opposite to knee. The complainant has stated in the complaint that he learnt that the present appellant Faijal and Raju Yogendra Yadav were caught hold by the villagers on the spot itself ant that's how, he came to know about the names igof the said accused persons. The complainant in his complaint has stated that since he was not helping Arjun Uttam Pathare, one of the accused in political activities, therefore, due to anger in mind for not helping in political activities, the main accused Arjun Uttam Pathare and Suresh Uttam Pathare assaulted the complainant. According to the complainant, Arjun Pathare assaulted on his head by weapon Sattur and Suresh assaulted by Sattur on his left hand wrist. On careful perusal of the contents of the complaint, so far motive is concerned, nothing has been attributed to the present appellant. The complainant no where stated in the complaint that the appellant / accused herein was somehow acquainted with him in past or he was crapl489.05 asking some favour in his political activities.

On the contrary, the case of the complainant himself is that the appellant was not known to him prior to the incident.

Sattur like weapon. One of them assaulted him on his right knee and another assaulted on his right hand. Arun Mohan Pathare came to rescue the witness but, he was also assaulted. It has also come in the evidence of the complainant that Arjun Uttam Pathare previously assaulted him on bus stand of Ghogargaon. He further stated that latter he came to know the names of other two persons i.e. Faijal and Raju Yadav. The villagers caught Faijal and Yadav on Banpimpri bus stand. He stated that accused before the Court was Faijal. In his cross-examination, he crapl489.05 has admitted that his land is adjacent to the land of Arjun and Suresh. He has stated Arun Mohan Pathare is his brother. He volunteered that 80% families in his village are Pathare. He further admitted that there is a Dargah of Mirawali Baba at village Mandali. He has further admitted that light facilities are not available at the Tea Stall.

ig He further stated that it is true that Faijal was admitted in Civil Hospital by the villagers. He further stated that accused Faijal assaulted on his knee. He further stated that he cannot tell the political party of accused Faijal. Accused Faijal did not contest election and he was not acquainted with accused prior to the incident. He came to know name of accused Faijal in the hospital.

12. P.W.2 Subhash Dagadu Pathare is panch witness to the recovery panchanama of weapon from another accused Raju Yogendra Yadav. From his evidence only it can be gathered that Raju Yadav is resident of Meera Road, Naya Nagar, Near Meera Police Chowki, Mumbai.

crapl489.05 On perusal of spot panchnama for which P.W.2 was a witness, it appears that on careful observations of the spot where the incident had taken place, there are no any marks at the said place. The said panchanama was prepared on 1st March, 2004.

13. P.W.3 Sambhaji Pandharinath Pathare is also a panch witness who was called to prepare panchnama of clothes pant and shirt of the accused appellant. P.W.3 is also panch witness for recovery panchanama of weapon. It appears from his evidence that on 8th March, 2004, the weapon Sattur was recovered at the instance of accused from the grown up grass by the side of bridge at Mandavgan Fata. The weapon was accordingly, seized. However, in his cross-

examination, this witness admits that Arjun Pandharinath and complainant Dilip Arjun told them to go to the Police Station. This witness has also stated date and time on which this was told to them. On 6th March, 2004 at about 2 - 3 p.m. they gave him this message to go to Police crapl489.05 Station for panchanama. On perusal of the said panchanama, it appears that the address of the appellant / accused mentioned is - Faijal Hamidkhan Noor Shah @ Pathan, r/o Meera Road, Asmita Sagar, Room No.4, B.V. Mumbai, Mumbai 22.

It further appears that the shirt and jeans pant of the accused was seized and it was sent to the Chemical Analyzer.

ig There is further memorandum panchanama recorded by the police.

14. The evidence of P.W.4 Arun Mohan Pathare is at Exh.42. He has stated in his evidence that the appellant / accused was not known to him before the incident. He has also admitted in his evidence that there was political rivalry between Dilip and accused Arjun Pathare. He has further admitted that he is in good relations with Dilip.

In his cross-examination, he has further admitted that "in January-February normally sun sets at 6 p.m. At about 7 p.m. it becomes dark in those days." He has stated in his evidence that the accused Faijal was admitted in Civil Hospital, Ahmednagar. He has denied the suggestion that he crapl489.05 and villagers assaulted accused Faijal as he was unknown to villagers. It is further stated that the accused Faijal has no concern with local politics of Banpimpri.

15. P.W.5 Arjun Pandharinath Pathare in his deposition has stated that accused Faijal was found onig the spot. The people chased the offenders. Arjun Uttam Pathare assaulted him on his head, above the ear by means of Sattura. He has also stated in his cross-examination that he had no concern with the accused prior to the incident. The accused had no concern with the village politics.

16. P.W.6 Pandurang Bapurao Pathare runs a tea stall near Shubham Hotel at Banpimpri. He was declared hostile. This witness, in his cross-

examination, has stated in paragraph 4, thus:

"4. I heard chaos near cattle shed. Peoples were running here and there. Dabbar material was lying for the repair of the crapl489.05 road by the side of the road. Some people fell on the ground and sustained injuries.

Due to chaos Dilip, Arjun started running away. Stone pelting was also going on.

Some fell on the ground and sustained injuries and some were injured due to stone pelting."

He further stated that he became afraid of the incident due to stone pelting and apprehended damage to his tea stall and afterwards, he left the spot. Further he has stated that accused was unknown person to the villagers and was assaulted by the villagers.

17. P.W.7 Macchindra Sitaram Pathare is the panch witness for the seizure of clothes of Arjun and Arun Pathare. He has stated in his cross-

examination, "We are interested in village politics. I am having good relations with Dadasaheb Jagtap". It is further stated that it is true that they have signed panchanama as they were asked to sign on the panchanama.

crapl489.05

18. The important witness Dr. Ashok Tulshiram Ghule was examined as P.W.8, whose evidence is at Exh.51. In his evidence, he has stated that Dilip Arjun Pathare had sustained five incised wounds on different parts i.e. wrist, left hand, left thigh, right forearm and on scalp, frontal region to vertex. He stated that all these injuries were possible by hard and sharp object.

On the same day, he had also examined Arjun Pandharinath Pathare and found one incised wound on left parietal region. This witness had also examined Arun Mohan Pathare and found one incised on frontal region towards vertex and two linear incised wounds on right wrist and left thigh. In paragraph 4 of his evidence, he stated that all injuries in Exhs.52, 53, 54 are simple (Emphasis supplied). In para 5, he has stated, " Dilip has no injury from backside of right leg. He is having injury on thigh on right leg. Dilip has no knee injury. Injury No.1 of Dilip may be possible if a sharp stone is pelted towards the person. Injury Nos.2 and 3 may be possible by means of a sharp stone." Further, in para 6, he crapl489.05 has stated,"Injury No.1 of Arjun may be possible if a sharp edged stone is pelted." He has further stated that if the person falls on sharp edged stone while running, such injury can be sustained. In respect of Injury No.2 also, he has given same opinion. Only in respect of Injury No.3, this witness has stated that it is not possible if the person falls on sharp stone while running.

This witness did examine the present appellant - accused Faijal on 1st March, 2004 and found following injuries on his person:

"1. C.L.W. On chin, 1/2"x1/2"x1/2".

2. C.L.W. On left eyebrow , 1"x1/2"x1/2".

3. C.L.W. On scalp on occipital region 1"x1/2"x1/2".

4. Contusion on both eyes."

He stated that all these injuries are possible by hard and blunt object. Accordingly, he issued medical certificate. He has stated in crapl489.05 his evidence that the certificate shown to him is the same and it bears his signature. The contents are true and correct. It is at Exh.55.

It is stated,"Accused told me that people assaulted him. Police did not give letter to examine the injured persons. The patients who were brought on the next day are brought with police yadi which includes accused.

19. P.W.10 Sahebrao Bhau Gawali was working as P.S.O. In Shrigonda Police Station. He stated that one Mr. Girme, P.S.I., recorded complaint of Dilip Arjun Pathare. He has admitted that he saw overwriting against the date when P.S.I. Girme brought the complaint. The date was 1.3.04 on the complaint. He did not make counter signature against the overwriting in endorsement column.

20. The another witness is P.W.11 Digambar Dagadu Khamkar. He has only assisted to draw map of the spot of the incident and the said has been crapl489.05 proved by the prosecution through him.

21. P.W.12 Hanumanta Vitthalrao Girme whose evidence was recorded at Exh.61 was working as P.S.I. in Shrigonda Police Station from 28.6.2003 to 25.4.2004. He has stated in his evidence that on 29th February, 2004, at about 20 hours Police Station received message that there was quarrel in Banpimpri. He went there with staff along with jeep. People caught two accused. I got their custody. This witness has stated that the weapons Sattur was recovered at the instance of accused Raju Yogendra Yadav. He further stated that on 7th March, 2004, accused Faijal was discharged from hospital. On 8th March, 2004, accused Faijal gave statement and at his instance, weapon was recovered from the bridge in between Banpimpri and Shubham Dhaba. He stated that the appellant accused took out Sattur from one bush below the bridge and accordingly, panchanama was drawn. Blood sample of the accused were sent to the C.A.

crapl489.05

22. In his cross-examination, he has made statement that he admitted Raju Yadav and accused Faijal in Civil Hospital, Ahmednagar on 29th February, 2004 at about 9.30 to 10 p.m. Accused Faijal was inpatient in Civil Hospital, Ahmednagar till 4th March, 2004. This witness volunteers that nothing transpired as to who assaulted accused Faijal or whether he sustained injuries by fall or otherwise. He did not register any crime for the injuries found on the person of accused Faijal. He stated in his cross-examination that the distance between Banpimpri and Shrigonda is about 35 to 40 Kms. He has stated that he arrested accused Faijal on 4th March, 2004 at 3.15 p.m.

23. Since the evidence of P.W.12 Hanumanta Girme, Investigating Officer, is in brief, as stated herein above. At this juncture, it would be appropriate to observe that the Investigating Officer in his examination-in-chief, has stated that on 7th March, 2004 the accused Faijal was discharged from Hospital. Therefore, he took him crapl489.05 to the police station and his arrest panchanama was prepared in presence of panchas. This statement in-examination-chief has not been maintained by the Investigating Officer. In his cross-examination, he has stated that the appellant Faijal was in Hospital at Ahmednagar till 4th March, 2004 and he arrested him on the same date at 3.15 p.m. The calculated statement of the Investigating Officer, in examination-in-

chief that the appellant Faijal was discharged from the hospital on 7th March, 2004 and then he arrested him appears to be a calculated statement so as to cover up the prosecution story, because in his examination-in-chief in para 5 he has stated that on 8th March, 2004 accused Faijal gave statement in presence of panchas that he was ready to produce the weapon which was used in the crime. It has come in the evidence of the medical officer P.W.8 Dr. Ashok Ghule that the appellant was discharged on 4th March, 2004. The Investigating Officer P.W.12 Girme, since unable to explain what happened from 4th to 8th March, 2004, appears to have stated in his examination-

crapl489.05 in-chief that the appellant was in hospital till 7th March, 2004 and on 7th March, he arrested the appellant. Therefore, the evidence of the Investigating Officer does not appear to be trustworthy.

The P.W.8 Dr. Ashok Ghule, Medical Officer has stated that the appellant was in the hospital till 4th March, 2004. On perusal of the evidence of P.W.4, it is clear that the accused told him that people assaulted him. However, the evidence of P.W.12 I.O., is to the extent that he has no knowledge as to who has assaulted the appellant -

accused. The Investigating Officer has not brought on record as to how the accused appellant had sustained injuries.

24. Therefore, in my opinion, the approach of the prosecution to the whole incident does not appear to be honest. In fact, it was the duty of the prosecution to explain the injuries sustained by the appellant / accused. P.W.8 Medical crapl489.05 Officer has mentioned as many as four injuries sustained by the appellant herein and the same have been proved before the Court. It would not be out of place to mention here that perhaps the prosecution has tried to suppress the genesis of the incident. It has also come in the evidence of the witnesses that at the relevant time, there was no light near the Tapari.

ig It has also come in the evidence of one of the witnesses that in the month of January, February sun sets at about 6 p.m., and from 6 p.m. onwards darkness spreads.

It has also come in the evidence of P.W.

6Pandurang Pathare that at the relevant time, there was Dabbar material available on the spot for road repairing. He has stated that some people fell down and sustained injuries. Stone pelting was also going on and they got injured by stone pelting and falling down. This shows that there was chaos and if the said situation is read with the medical evidence, it appears that the incident, as narrated and told by the prosecution, may appear to be different than prosecution story. It has come in the statement crapl489.05 of the appellant u/s 313 of Cr.P.C. that at the relevant time, he was taking dinner in the said Dhaba and he had nothing to do with the incident in question. He came there to go to Morwali Dargah. Nearby the place of incident, this Dargah is there, which has been admitted by the complainant himself in his evidence before the Court. On ig perusal of the evidence of P.W.12 Hanumanta Girme, Investigating Officer, it appears that his evidence in its totality does not appear to be trustworthy qua the present appellant. According to the Investigating Officer, the weapon Sattur was recovered at the instance of the appellant on 8th March, 2004, whereas, the incident in question had taken place on 29th February, 2004. It is prosecution story and it has come in the evidence of prosecution witnesses that the appellant / accused was caught hold on the spot itself. Therefore, if at all he was carrying the weapon with him, same should have been with him at the spot itself.

Therefore, the prosecution story that on 8th March, 2004 at his instance the weapon was crapl489.05 recovered from the place near the bridge, which is away from the spot, appears to be a story concocted by the prosecution afterthought. Such recovery / discovery of weapon and seizure thereof is a blatant lie by the prosecution.

Therefore, the Sessions Court has rightly discarded that part of the evidence and observed that there ig was no recovery of weapon by the prosecution from the accused / appellant. In the facts and circumstances of this case, the recovery of the weapon from the appellant has vital and important bearing on the prosecution case. The appellant was charged for offence punishable u/s 307 r.w. 34 of I.P.C. along with three other accused persons. The prosecution witnesses and also the prosecution story is that all the four accused were holding weapons in their hands and more particularly, the weapon called "Sattur". In this background, unless there was recovery from each accused beyond reasonable doubt, it cannot be said as to which accused had inflicted a particular injury sustained by the complainant or P.W.4 Arun Mohan crapl489.05 Pathare or any other person. In absence of that, it is impossible to attribute overt act to each accused. It has also come in the evidence of Medical Officer P.W.8 that the complainant had not sustained injury on knee, as stated by the complainant in his evidence that the appellant had assaulted on backside of his knee.

25. The prosecution story qua the appellant / accused appears to be far from the truth. It has come in the evidence of all the witnesses that the appellant was unknown to witnesses till the date of incident. The whole story of the prosecution, as narrated by the complainant that there was political rivalry between other accused namely Arjun and Suresh and the complainant. The appellant herein was not politically involved in the whole episode. There is is no motive suggested or established by the prosecution for commission of such offence by the appellant. It is not necessary to refer to the evidence of each witness since the evidence of each witness in brief is already stated in the earlier crapl489.05 paragraphs. It is also relevant to mention that P.W.8 Dr. Ashok Ghule has suggested that the injuries sustained by the complainant or other injured persons can be possible by fall on the ground or by stones.

village where the incident had taken place and he was residing somewhere at Mumbai. It has come in evidence of P.W.1 that other two main accused namely, Arjun and Suresh Pathare own land adjacent to the land of complainant. At the cost of repetition, it has to be mentioned that the prosecution has failed to prove or bring anything on record that the appellant was connected with any political party or he had any political interest or any enmity with the complainant and other injured persons prior to the date of incident, like other two main accused. It is also relevant to mention that the statement of P.W.4 Arun Pathare (Injured) was recorded on 8th crapl489.05 March, 2004 i.e. after eight days of the incident. The Division Bench of this Court in case of Ganesh s/o Godruji Uikey and Anr. Vs. State of Maharashtra, reported in 2007 ALL MR (Cri.) 3076 and the Hon'ble Supreme Court in the case of Balakrushna Swain Vs. The state of Orissa, reported in AIR 1971 SC 804, have taken a view that if there is delay in recording statement of the eye witness and there is no satisfactory explanation offered for that, the delay is fatal for prosecution. At the cost of repetition it would be relevant to mention that the prosecution has utterly failed to explain the injuries sustained by the appellant / accused. As stated earlier, the appellant was not known to the prosecution witnesses. Therefore, I find considerable force in the argument advanced by the learned Counsel for the appellant that there should have been identification parade as contemplated u/s 9 of the Evidence Act. The witnesses are also not consistent in telling as to which of the alleged weapons the appellant had used in the commission of the offence. The evidence of the prosecution witnesses suffers crapl489.05 from contradictions, omissions and exaggeration.

It has also come in the evidence of the P.W.1 Dilip complainant that 80% population of his village is having common surname `Pathare'. In that sense, there is force in the argument of the Counsel for the appellant that the eye witnesses are interested witnesses. It has come in the spot panchanama that there was no any mark or sign of any violence on the spot of the incident and nothing was recovered from the spot.

27. The C.A. report is of no help to the prosecution. The prosecution is not able to connect the C.A. report with the prosecution story and more particularly, in respect of the appellant herein. Appellant's clothes were sent to the Chemical Analyzer and what was detected on his clothes has not been explained by the prosecution.

28. The Sessions Court, believing the evidence of P.W.1 Dilip, P.W.4 Arun Pathare and the medical evidence, convicted the appellant herein crapl489.05 for the offence punishable u/s 324 r.w. 34 of I.P.C. and sentenced him to suffer R.I. for one year and to pay a fine of Rs.500/-. However, he was acquitted of the offence punishable under Section 307 r.w. 34 of I.P.C. The reasons and findings recorded by the 3rd Additional Sessions Judge, Ahmednagar while convicting the accused / appellant are general in nature and it is mere eye wash. In para 37 of the judgment, the trial Court has concluded that there was no recovery of weapon from the appellant. However, proceeded to convict the appellant herein. The trial Court should have taken the injuries sustained by the appellant seriously. The prosecution has utterly failed to explain the injuries on the person of the appellant, as it is evident from the evidence of the Investigating Officer. The prosecution is bound to explain the injuries and investigate into the matter even in respect of the appellant / accused. No efforts or attempts have been made by the concerned Investigating Officer to investigate about the said injuries and explain the same though he was legally obliged to crapl489.05 do so. The Sessions Court in para 32 of the Judgment as referred to the C.A. report.

However, how it is relevant and how it provides additional link in the prosecution story has not been explained by the Sessions Court. In my opinion, the judgment and order passed by the Sessions Court suffers from proper appreciation of evidence and also application of mind.

29. It is not necessary to burden this judgment any more. Suffice it to say that there was no any motive for the appellant to commit such offence. The prosecution has not brought anything on record to suggest that the appellant had motive to commit such offence. It has come in the evidence of the witnesses that the appellant was unknown to them before the incident and he had no interest in the local politics.

The whole case of the complainant is that since he was not helping Arjun and Suresh Pathare in political activities, they assaulted the complainant even prior to the incident also. It has come in the evidence of P.W.2 Subhash Pathare crapl489.05 that the agricultural field of Suresh and Arjun Pathare is adjacent to the field of complainant.

The appellant is not resident of said place and he is resident of Mumbai. There are material contradictions, omissions and exaggerations in the evidence of the prosecution witnesses. The version of the prosecution witnesses in respect of the appellant herein is not supported by the Medical Evidence brought on record through P.W.8 Dr. Ashok Ghule. The recovery of the weapon is not believed by the Sessions Court. As already discussed, the story of the prosecution about recovery of weapon at the instance of the appellant appears to be concocted and afterthought. Once there is no recovery of the weapon, in the facts and circumstances of the case, the role of each accused in commission of the offence cannot be segregated since the witnesses have stated that all the accused were holding weapon Sattur in their hands. Unless overt act is attributed to each accused and it is shown that there was intention on their part to commit the offence, they cannot be convicted wit crapl489.05 the help of section 34 of I.P.C. All in all, the evidence brought on record by the prosecution against the appellant herein is far from the truth and suffers from material contradictions, omissions, inconsistency and, therefore, the prosecution has failed to prove the case against the appellant beyond reasonable doubt. It is settled legal position that if there is room for doubt, the benefit of doubt should be given to the accused.

It is also relevant to refer to the statement of the accused / appellant u/s 313 of Cr.P.C. wherein, he has stated while replying Question No.6 that he was caught in Shubhada Dhaba when he was taking dinner. He has specifically denied the assault on the complainant and other witnesses. While replying Question No.34, he has admitted that he was unconscious and he was admitted in hospital.

While replying Question No.39, he has stated that his signature was obtained on blank paper.

Question No.46 is - Why the witnesses are crapl489.05 deposing against you? While answering this question, the appellant stated, thus:

"I was going to Mirwali Dargah. Truck stopped for dinner. I took dinner. I was going to my truck. But people assaulted me. I became unconscious."

the appellant has stated while replying question No.46 cannot be said to be false.

30. Therefore, taking overall view of the matter, in my opinion, this is a fit case where the impugned judgment and order deserves to be set aside.

31. In the result, the appeal is allowed. The impugned judgment and order dated 16.5.2005 passed by learned Additional Sessions Judge, Ahmednagar in Sessions Case No.112 of 2004 thereby convicting the appellant for the offence punishable under Section 324 r.w. 34 of I.P.C.

and sentencing him to suffer R.I. for one year crapl489.05 and to pay a fine of Rs.500/-, i/d S.I. for three months, is quashed and set aside and the appellant Faijal Hamidkhan Noon Mohmad Shah @ Pathan is acquitted of the charge levelled against him.

Since, the appellant has been acquitted, the order dated 15th February, 2008 passed by this Court directing Sessions Court to issue of warrant for arrest of the appellant need not be executed and such warrant shall stand cancelled.

Since the trial of the absconding three accused persons is not completed, it is made clear that whatever observations and findings are recorded in this judgment, those are recorded qua the appellant, keeping in mind the case of the present appellant only and no reliance shall be placed on these observations and findings in case of other co-accused.

[ S.S. SHINDE, J ] Kadam/*

Mumbai v. The State Of Maharashtra

Structured Summary of the Judgment (dated 14 January 2011)

Factual and Procedural Background

Legal Issues Presented

Arguments of the Parties

Appellant's Arguments

Respondent (State)'s Arguments

Table of Precedents Cited

Court's Reasoning and Analysis

Holding and Implications

Mumbai v. The State Of Maharashtra

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