[- 1 -] IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NO.1331 OF 2007 1. Krishna @ Gotya Bajrang ] Chikane ] Age 42 years, Occ: ] Residing at Kamalabai ] Zopadpatti, 19 Road, ] No.11 Beh.Aluman Kiran ] Shop, Govandi, ] Baigamwadi, Mumbai ] 400 043 ] ] 2. Sachin Bajrang Chikane ] Age 37 years, Occ: ] Residing at Kamalabai ] Zopadpatti, 19 Road ] No.11 Beh.Aluman Kiran ] Shop, Govandi, Baigamwadi ] Mumbai-400 043 ] ] (Appellant Nos.1 and 2 ] at present in Central ] Prison, Nasik) ]..Appellants [Ori.Accused Nos.2 and 3] Vs. State of Maharashtra ]..Respondent .... Mr.Vinod Wagh Advocate for Appellants Mr.Rajesh More APP for State .... WITH WITH WITH CRIMINAL APPEAL NO.7 OF 2008 Mohd. Rais @ Kalya Pappu ] Shahjade Ansari ] Age 35 years,Occ: ] Residing at Plot No.42, ] Line Queue Room No.7, ] Shivaji Nagar, Govandi, ] Mumbai-400 043 ] (Accused at present in Thane ] Central Prison) ]..Appellant Vs. [- 2 -] State of Maharashtra ]..Respondent .... Mr.Ganesh Gole Advocate for Appellant Mr.Rajesh More APP for State .... CORAM: SMT.V.K.TAHILRAMANI,J. CORAM: SMT.V.K.TAHILRAMANI,J. CORAM: SMT.V.K.TAHILRAMANI,J. DATE : APRIL 30, 2008 DATE : APRIL 30, 2008 DATE : APRIL 30, 2008 ORAL JUDGMENT: ORAL JUDGMENT: ORAL JUDGMENT: 1. The appellant-orignial accused no.4-Mohd.Rais @ Kalya Pappu preferred Appeal No. 7 of 2008 and the appellants-original accused No.2-Krishna alias Gotya Bajrang Chikane and accused no.3-Sachin Bajrang Chikane have preferred Appeal No. 1331 of 2007. Through these appeals, all the appellants have challenged the judgment and order dated 21.11.2007 passed by the learned Additional Sessions Judge, Greater Bombay in Sessions Case No.242 of 2005. By the said judgment and order, the learned Sessions Judge convicted the appellants-original accused nos.2, 3 and 4 for the offence under Section 307 read with Section 34 of IPC and sentenced them to RI for five years and fine of Rs.1000/- in default RI for six months. 2. The prosecution case briefly stated is as under: . PW 4 Rafiq Shaikh is the brother of PW 1 Shafi [- 3 -] who is the complainant in the present case. They were residing in Baigamwadi, Mumbai. They knew all the accused. There was some dispute between accused nos.2 and P.W.4. On 25.12.2004 at about 7.30 p.m., call was received by PW 4 Rafiq from accused no.2 asking PW 4 Rafiq to come to settle the dispute. Hence, PW 4 Rafiq along with PW 1 Shafi went to plot no.26 at Baiganwadi, Mumbai to settle the dispute. On reaching there, PW 4 Rafiq proceeded ahead along with four accused persons. At that time, PW 1 Shafi stayed back by the side of the road. The prosecution case is that all the four accused persons assaulted PW 4 Rafiq with sharp edged weapon. On hearing shouts of PW 4 Rafiq, PW 1 Shafi rushed to the spot. Thereafter, PW 4 Rafiq was taken to the hospital and he came to be treated. FIR of PW 1 Shafi came to be recorded. 3. Charge came to be framed against the appellants and one other accused i.e. original accused no.1 under Section 307 read with Section 34 of IPC. All the appellants pleaded not guilty and claimed to be tried. Their defence is that of total denial and false implication. It may be stated here that the case of original accused no.1-Shahabuddin @ Babu Chaddi came to be posted on dormant file. [- 4 -] 4. I have heard Mr.Ganesh Gole, the learned advocate for the appellant in Cri.Appeal No. 7 of 2008 and Mr.Vinod Wagh, the learned advocate for the appellants in Cri.Appeal No. 1331 of 2007 and Mr.Rajesh More, the learned APP for the State in both the Appeals. I have also perused the judgment and order and the material on record. After giving my anxious consideration to the matter, I am of the opinion that these appeals deserve to be allowed. 5. The case of the prosecution is mainly founded on the evidence of PW 4 Rafiq who is injured witness in the present case. PW 4 Rafiq has stated that there was dispute between him and accused no.2 Gotya. Gotya called him to settle the dispute, hence, he along with PW 1 Shafi went to the spot. His brother Shafi stayed by the side of the road and Rafiq went ahead with the accused persons. PW 4 Rafiq stated that first Gotya removed some weapon from his waist and assaulted on his stomach, feet, waist. Then other accused also assaulted him. Thereafter, he was shifted to hospital for treatment. PW 4 Rafiq was examined by PW 5 Dr.Zawar. Dr.Zawar found four injuries on his person i.e. one injury on the head, one injury on the right thigh, one injury on the left thigh and one on the right buttock. The medical evidence does not corroborate the evidence [- 5 -] of injured witness. There is no injury on the stomach, feet or waist of Rafiq. There is total discrepancy between the evidence of the injured witness and the medical evidence. Hence, it raises doubt about the veracity of this witness. 6. As far as PW 1 Shafi is concerned, Rafiq Shaikh is the brother of PW 1 Shafi who is the complainant in the present case. They were residing in Baiganwadi, Mumbai. They knew all the accused. There was some dispute between accused nos.2 and P.W.4 Rafiq. On 25.12.2004 at about 7.30 p.m., call was received by PW 4 Rafiq from accused no.2 asking Rafiq to come to settle the dispute. Hence, Shafi along with PW 4 Rafiq went to plot no.26 at Baiganwadi, Mumbai to settle the dispute. On reaching there, PW 4 Rafiq proceeded ahead along with four accused persons. At that time, PW 1 Shafi stayed back by the side of the road. On hearing shouts of PW 4 Rafiq, PW 1 Shafi rushed to the spot. He saw the accused assaulting his brother Rafiq. Thereafter, PW 4 Rafiq was taken to the hospital and he came to be treated. Looking to the evidence on record, it is seen that this witness was standing at a distance and he has not been able to observe the incident. He has stated that he had to run for about 60 to 70 feet to reach his brother. It has [- 6 -] come on record that he had stated only names of accused No.1 Babu Chaddi and accused No.4 Pappu Kalya to police and his implication of accused Nos. 2 and 3 is by way of improvement. Thus, this witness does not appear to be credible. 7. Moreover, PW 1 Shafi has stated that he raised shouts and about 20 to 25 persons gathered on the spot. However, in the present case, no independent witness has been examined. In the present case, it is seen that there was previous enmity between the witnesses and the accused persons. Looking to this fact and discripancy between the evidence of PW 4 Rafiq and the medical evidence and nature of evidence of PW 1 Shafi, it was necessary that some independent witness ought to have been examined. 8. Moreover, PW 4 Rafiq stated that after the incident he was unconscious for about 6 to 7 months. The statement of Rafiq is falsified by the statement of PW 1 Shafi who is brother of Rafiq. PW 1 Shafi has stated that his brother was admitted in the hospital as indoor patient for 15 days and thereafter he was given discharge. This witness has stated that his brother regained consciousness after two days. On the other hand the Investigating Officer has stated that he recorded statement of [- 7 -] Rafiq on the very same day. From the evidence of these witnesses, it is seen that PW 4 Rafiq has a tendency to make false statements. Thus the statement of Shafi and statement of Investigating officer that he recorded statement of Rafiq on the very same day, falsify the evidence of PW 4 Rafiq that he was unconscious for about 6 to 7 months and it also shows that the testimony of Rafiq cannot be safely relied upon. 9. I have already observed earlier that it does not appear that PW 1 Shafi had actually witnessed the incident. As far as the evidence of PW 4 Rafiq is concerned, the same is not corroborated by the medical evidence. Looking to these facts, I am of the opinion that the appellants deserve to be given the benefit of doubt and acquitted of the offence under Section 307 r.w. 34 of IPC. 10. In the result, the conviction and sentence imposed on the appellants by the learned Addl. Sessions Judge, Greater Mumbai for the offence under Section 307 r.w. 34 of IPC by judgment and order dated 21.11.2007 in Sessions Case No.242 of 2005, is set aside. The appellants be set at liberty if not required in any other case. [- 8 -] 11. Appeals are allowed. [SMT.V.K.TAHILRAMANI,J.] [SMT.V.K.TAHILRAMANI,J.] [SMT.V.K.TAHILRAMANI,J.]