1 Cri.App.No. 873/89 with Cri.Rev.Appln. No.376/89. IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE CRIMINAL APPEAL NO. 873 OF 1989 WITH CRIMINAL REVISION APPLICATION NO. 376 OF 1989 The State of Maharashtra. ... Appellant. vs. 1. Ibrahim M. Hanif Shaikh. 2. Ejaj Harun Shaikh. 3. Ayyub M. Hanif Shaikh 4. Anis Harun Shaikh. Accused Nos. 1 and 3 R/o. H.No. 479 North Kasha, Solapur, Accused Nos. 2 and 4 R/o. H.No. 611, North Kasba, Solapur. ..... Respondents. (Orig. Accused) Mr. H.J. Dhedia, APP for the State (Appellant). Mr. J.D. Mane for Respondent No.4. CORAM : D.B. BHOSALE & RAJESH G. KETKAR, JJ. DATE : 25th AUGUST, 2010. 2 Cri.App.No. 873/89 with Cri.Rev.Appln. No.376/89. ORAL JUDGMENT (Per D.B. BHOSALE, J.) : This appeal by the State is directed against the judgment and order dated 30.9.1989 rendered by the IIIrd Additional Sessions Judge, Solapur, in Sessions Case No. 126 of 1989. By this judgment, all the four respondents-accused, who were charged and tried for the offence punishable under Sections 302 and 324 read with 34 of IPC and Section 37 (1) read with Section 135 of the Bombay Police Act, have been acquitted. 2. This Court on 18.3.1991 dismissed the appeal and the criminal revision application against respondent no. 1 as abated since respondent no. 1 was reported to be dead. Thereafter similar order was passed in respect of accused no. 2 also on 2.6.2007. Mr. Mane, the learned counsel appearing for respondent no. 4 submitted that as per his instructions even respondent no. 3 has died during pendency of the appeal and hence the appeal will have to be dismissed as abated against respondent no. 3 also. From perusal of the record it appears that there is a letter on record sent by the Additional District and Sessions Judge dated 12.3.2008 addressed to the Additional Registrar of this Court . This letter supports the submission of Mr. Mane in respect of respondent-accused no. 3. It is thus clear that all the 3 Cri.App.No. 873/89 with Cri.Rev.Appln. No.376/89. accused, except accused no. 4, are dead and, therefore, we have to deal with this appeal only against respondent no. 4 - Anis Harun Shaikh. 3. According to the prosecution, the deceased - Jabbar was murdered by the respondent-accused on 25.12.1988 at 9.30 p.m. near Murtuja Cycle Mart opposite Punjab Talim Masjid, Solapur. It is alleged that accused no. 1 inflicted stab injury causing death of one Jabbar. It is further alleged that respondent no. 4 also caused stap injury to the complainant - Jabir Allauddin Sayyad @ Master (PW-4). It appears that there was an enmity between accused no. 2 and the deceased. Four days prior to the incident, accused no. 2 had been to the house of the deceased at about 11.30 p.m. The mother of the deceased Smt. Malanbi Sayyad (PW-11) was in the house. Accused no. 2 inquired with her about the deceased and allegedly slapped her and also pelted stones on her house and went away. When the deceased - Jabbar and his brother came to know about the incident, they decided to take the matter before their Jamat Panchayat. They also submitted an application dated 24.12.1988 to the police and lodged N.C. complaint against accused no. 2. It is against this backdrop that on 25.12.1988 at about 9.30 p.m. when the complainant along with the deceased Jabbar, PW-6 Abbas Shaikh, PW-7 Esak Allauddin Sayyad and PW-5 Mohamad 4 Cri.App.No. 873/89 with Cri.Rev.Appln. No.376/89. Yunus were sitting in front of Murtuja Cycle Mart, the accused persons went there and there was exchange of abuses between them. At that time, it is alleged, that accused no. 1 took out a knife and inflicted a blow on the left side of Jabbar's chest. Accused no. 2, according to the complainant, was holding sword whereas accused nos. 3 and 4 were holding knives at the relevant time. The complainant has stated that when he tried to run away, accused no. 2 gave him kick blows and accused no. 4 inflicted knife blow on right side of his chest and as a result thereof, he sustained bleeding injury. The deceased Jabbar was, thereafter removed to the hospital where he was declared dead. The cause of death, as per the post mortem report, was due to shock as a result of stab injury. In so far as the complainant-PW-4 is concerned, he sustained one incised wound on infra clavicular area. While describing the wound, the Doctor has also mentioned that there was no active bleeding when he examined the complainant - P.W.4. It is against this backdrop, all the accused persons were charged and tried for the offence punishable under Section 302 and 324 read with 34 of IPC and Section 37 (1) read with Section 135 of the Bombay Police Act. 4. The prosecution in support of their case agaisnt the accused examined 12 witnesses including the 5 Cri.App.No. 873/89 with Cri.Rev.Appln. No.376/89. complainant-P.W.-4, Abbas Shaikh-PW-6, Eask-PW-7 and Yunus-PW-5 as eye witnesses. Having considered the evidence of all the witnesses coupled with the evidence led by the prosecution in the form of documents such as post mortem notes, C.A. reports, etc., the trial Court acquitted all the accused after having noticed material discrepancies, contradictions/ omissions and improvements in the evidence of the eye witnesses. 5. The appeal has already been dismissed as abated against respondent nos. 1 to 3 and in view thereof the judgment of the Sessions Court stands confirmed against them in as much as we cannot and need not now examine the judgment against these accused. We have perused the entire evidence against respondent no. 4 with the assistance of the learned counsel for the parties so also the findings recorded by the Court below regarding the assault on the complainant. The relevant observations from the judgment of the Sessins Court in respect of the allegations against respondent no. 4 read thus:- " It is the prosecution case that the accused No. 4 gave a knife blow on the person of Jabir the complainant so also accused No. 2 and 4 gave kicks on his person. I have already mentioned earlier about the credibility of the evidence of the complainant as he has not stated about the assault in respect of the rest of the accused as I 6 Cri.App.No. 873/89 with Cri.Rev.Appln. No.376/89. have already mentioned that it is the complaint that all the accused assaulted deceased Jabbar. It is to be noted that the house of the complainant was just near the spot. But he did not go to the house nor he was taken by his own brother. It is pertinent to note that his brother PW Yusuf (Exh. 36) has stated that he was not aware about the injuries on the person of the complainant till 26/12/88 and he had seen him at the first instance after the incident in the police station on 26/12/88. It is pertinent to note that PW Yusuf is the real brother of the complainant even then he was not aware about the injuries on the person of the complainant and as such the credibility of the complainant and complaint itself is doubtful. Moreover PW Mohomed Yunus also has not seen the beating to the complainant. So also PW Abbas has not also seen the accused assaulting the complainant nor PW Yusuf has seen the assault on the person of the complainant. Thus the sole testimony of the complainant will not be sufficient to come to the conclusion that accused No.4 has stabbed him and accused Nos. 2 and 4 assaulted him by kicks. It is admitted by the complainant that many persons were gathered at the spot of incident but none from the mob is witness in the present case. Similarly it is admitted fact that residential houses are situated in the locality but none from the locality except the interested witnesses are the witnesses in the present case. In such state and circumstances I come to the conclusion that the evidence of the complainant cannot be accepted that he was assaulted by knife by accused No. 4 and accused Nos. 2 and 4 gave kicks. Thus the prosecution failed to establish that the complainant sustained injuries due to the objection by the hands." 6. On reappreciation of the evidence of PW-4, PW-5, PW-6 and PW-7 we found several infirmities in their evidence. Their evidence consists of discrepancies, contradictions/ omissions and improvements, which ultimately prompted the Trial Court to acquit the main accused who was author of the 7 Cri.App.No. 873/89 with Cri.Rev.Appln. No.376/89. fatal blow dealt to the deceased Jabbar. In view of the order dismissing the appeal as abated against all the other acused including the main accused and considering that these acused were acquitted by the trial Court on appreciation of evidence, on the basis of the same evidence, accused no. 4, who was also acquitted on merits, cannot be convicted by reversing the order of acquittal. That apart, even on merits we did not find any reason or manifest error of law to take a view other than the one taken by the trial Court. The trial Court has recorded the order of acquittal on proper appreciation of evidence. 7. We have re-appreciated the entire evidence on record which, in our opinion, is definitely not sufficient to hold that the prosecution has proved beyond reasonable doubt the involvement of the accused. The findings recorded by the trial Court cannot be termed as perverse. The jurisdiction of this court in dealing with an appeal against an order of acquittal is circumscribed by the limitation that no interference is to be made with the order of acquittal unless the approach made by the lower court to the consideration of the evidence in the case is vitiated by some manifest illegality. In the present case, it cannot be stated that the conclusion recorded by the Court below is such which could not have been possibly arrived at by any Court acting 8 Cri.App.No. 873/89 with Cri.Rev.Appln. No.376/89. reasonably and judiciously. As a matter of fact, the learned APP could not and did not point out either manifest illegality or perversity in the conclusion drawn by the trial Court. In view thereof we confirm the order of acquittal and dismiss the appeal. The bail bond, if any, stands cancelled. (D.B. BHOSALE,J.) (RAJESH G. KETKAR, J.)