VPH IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPLICATION No. 2753 OF 2008 The State of Maharashtra ... Petitioner Vs. Shaikh Salim Shaikh Amir & Ors... Respondents Mrs. P. H. Kantharia, APP for the Petitioner. CORAM : BILAL NAZKI, & A. A. KUMBHAKONI, J. DATE : AUGUST 29, 2008. PC :- 1. This is an application for leave to appeal against the acquittal of accused persons in Sessions Case No. 135 of 2003 vide judgment and order of conviction, dated 24th March, 2008 passed by the Ad-hoc Additional Sessions Judge-1, Malegaon, of the offences punishable under section 143, 147, 148, 302 read with section 149, 349 read with section 149, 427 read with section 149 and section 120B of the Indian Penal Code. 2. The prosecution case is that on 10th August, 2001 there was a quarrel between the accused Javed - 2 - Jumman and Chhota Alu. On that count, the concerned police had registered the case under secttion 110(e)(g) of Cr.P.C. and they were sent to Nashik Road Central Jail. The complainant Mohammad Salim alias Salim Tembhe owned Car bearing No. MH-12/E-5806. On 15th August, 2008 at about 3.00 p.m.Isriel Member who was the brother of deceased Chhota Alu contacted the complainant on phone and asked him to take his car to bring deceased from Nashik Road Central Jail. Accordingly at about 4.00 p.m. the complainant and his driver had been to the house of brother of deceased Chhota Alu. They were given the closed envelope with the directions to go to Central Jail, Nashik Road, to hand over the said envelope to the Jailer and then bring the deceased Chhota Alu to Malegaon. Therefore, the complainant, his driver Jainul Abedin and some others went to Nashik Road Central Jail at about 7.00 a.m. on 15th August, 2001. They handed over the envelope to the jailer. After some time police made challan of the car being parked in no parking zone, it was also searched, the car was taken to the Jail Road Police chowky. 3. Meanwhile the deceased Chhota Alu was released from the Central Jail. The accused Jakir Jumman had - 3 - also been to Nashik Road Jail with car bearing No. MH-18/392 to take his brother Sadiq Jumman and Khalil Jumman. The complainant, deceased and their other companions proceeded from Nashik Road for Malegaon at about 1-00 p.m. They haulted for brake-fast at Vadalibhoi at about 2.00 p.m. Thereafter when they were proceeding towards the destination, the complainant came near Chinchave village at about 2.45 p.m. A pelting of stone on their car suddenly started by both the sides of the road. While driver of the car was attempting to take the car away from that place, one Tata 408 tempo obstructed their way and their car was forced to stop. Accused Jakir Jumman and other 10 to 15 persons encircled the car of the complainant. Deceased Chhota Alu sitting near driver in the car, attempted to escape from the clutches of those persons. 4. Accused Jakir and his companions assaulted Chhota Alu with sharp weapons like swords and caused him head injuries. Jakir asked the complainant not to intervene and remain aside. Those persons assaulted driver and Tahir. The persons except deceased managed to ran away from the spot and haulted by the side of the road. As a result of this occurance, deceased Chhota Alu died and therefore, the accused persons - 4 - were prosecuted. 5. During the course of the trial, two witnesses i.e. PW 1 Abdul Salam and PW 5-driver Jainul Abedin had tried to support the prosecution story. 6. This was fight between two gangs, on the basis of the complaint filed by the accused gang. The complainant who is PW 1 was also facing trial in a murder case. PW 5 did not support the prosecution story at all, though in his examination-in-chief he stated that out of the persons who attacked the deceased, he could identify Jakir, but in his cross-examination he stated that he had not seen Jakir at the place of occurance. Therefore, in the absence of any corroboration to the statement of PW 1, who had number of disputes with the accused persons and was facing prosecution with regard to those disputes, the trial Court was justified in not believing the prosecution story. 7. For these reasons we do not find any merit in the application for leave to appeal, which is accordingly dismissed. Sd/- [ BILAL NAZKI, J.] - 5 - Sd/- [ A. A. KUMBHAKONI, J.]