IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NO.436 OF 1996 The State of Maharashtra .. Appellant Versus Hamid Dawood Nachare & Ors. .. Respondents Mr.Y.S.Shinde, A.P.P for the appellant. Mr.R.R.Bhosale for the respondents. CORAM CORAM CORAM : A.S.OKA, J. : A.S.OKA, J. : A.S.OKA, J. DATE DATE DATE : 03rd April : 03rd April : 03rd April 2009. 2009. 2009. ORAL ORAL ORAL JUDGMENT: JUDGMENT: JUDGMENT: . The State of Maharashtra by filing this appeal against acquittal has taken an exception to the impugned order dated 30th March 1996 by which the respondents accused have been acquitted of the offences punishable under section 307, 506, 504 read with section 34 of the Indian Penal Code. The office noting shows that the 2nd respondent has since died and appeal does not survive as far as the 2nd respondent is concerned. With a view to appreciate the submissions made by the learned A.P.P and the advocate appearing for the 1st respondent, it will be necessary to refer to the facts of the case in brief. In the impugned judgment, the learned Judge has set out the case of the prosecution in paragraphs 2 to 4 (2) thereof. The said paragraphs read thus: "2. The prosecution case as is revealed during the trial is that the complainant Ahmad Ali Yakub Nawlekar is residing at Musalmanwadi under village Nandgaon alongwith his wife Aishabi and son Ramzan. His sister-in-law Dilshadbi Navlekar is also residing in the neighbourhood alongwith her husband Noormahamad. In 1991 accused Hamid and others had killed the son of Babalal Satwilkar for which Hamid and others were prosecuted. Hamid also had filed a criminal case against Babalal and 12 others. This complainant Ahmad Ali was a surety for the accused in a case filed by this accused Hamad Nachare. Hence, the relation between accused Hamid and complainant Ahmad Ali Yakub Navalekar were inimical. 3. On 11.12.1994 at about 8.00 a.m. the complainant Ahamad Ali was returning to his residence after answering call of nature, both accused Nos.1 and 2 then went to the compound of the complainant and abused him saying Madarchod and said that the complainant was taking lead in (3) releasing the accused in the case filed by accused Hamid. Then accused Hamid took out scythe from his waist and raised to hit it on the head of complainant. The complainant raised hue and cry and also held raised his left palm above his head. Aishabi, Ramzan, Dilshadi etc rushed to the spot which was near the residence of complainant. Accused No.2 had caught hold of the complainant in his arm and accused No.1 gave a scythe blow which complainant received on his left fingers. Consequently last three fingers of left hand of complainant got cut sustaining bleeding injuries. Accused No.2 then made to fall complainant on the ground and accused No.1 then gave a blow of the said scythe on the right thigh of the complainant, sustaining severe bleeding injury. The accused then abused and threatened to kill and went away. Aishabi, Ramzan, Noormahamad etc carried complainant to his residence and from there to the Government Hospital, at Kankavali immediately. 4. The Medical Officer, Kankavali informed police station Kankavali on telephone regarding the injuries of complainant. P.S.O. Kankavali (4) sent the police officers to record the statement of complainant in the hospital. Accordingly, the complaint which is registered as a F.I.R at Exhibit 22 came to be recorded in the hospital at Kankavali." 2. The prosecution examined as many as ten witnesses. It will be necessary to refer to evidence of P.W.No.1 Ahmad Ali Yakub Navalekar. Paragraphs 2 to 4 of the deposition of the said witness are relevant which read thus: "2. In 1991 son of Babalal Adam Satvilkar was killed and hence the criminal proceeding started against accused Hamid Dawood Nachare who had also filed a counter case against the said Babalal and others, in which I had accepted the surety ship for Babalal. Hence, accused Hamid had inimical terms with me. 3. On 11.12.1994 at about 8.00 a.m while I was returning by answering call of nature, both accused Hamid and his son Shabbir came to my house in the compound and Hamid started abusing (5) saying Madarchot, I had taken the lead in rescuing the accused from jail. He then took out a scythe tied near his waist and lifted to give a bit to me. I raised hue and cry which attracted my wife and son Ramzan. I also lifted my left hand to avoid the hit on my head. Accused Hamid have a blow of scythe on my head, consequently my left three fingers cut due to the blow of scythe. Then accused Shabbir had caught hold of me in his arms. I sustained bleeding injury. I fell down. Accused Hamid then gave a blow of scythe on my right thigh. It sustained injury to my right thigh, blood oozed on the ground. My sister-in-law stays adjacent to our residence. She is Dilshadbi. She also rushed to the spot hearing my hue and cry. Accused Hamid said that he would kill me. Then both accused went away. 4. Noormohammod-the husband of Dilshadbi had also rushed to the spot on hearing my hue and cry. He alongwith my son Ramzan, wife and Dilshadbi all then lifted me and taken to the house. Then I was taken to the highway and put in an autorickshaw and was taken to the (6) Government hospital at Kankavali. Noormohmmod, Dilshadbi and my wife accompanied me in that autorickshaw. The medical officer attended and gave treatment. After some time the police came there and recorded my statement. Now I am shown the complaint dated 11.12.1994. It bears my signature. Its contents are true (Exhibit 22)." 3. The witness further stated that his sister-in-law Dilshadbi rushed to the spot after hearing hue and cry. Her husband Noormahamad also arrived at the scene. He stated that Noormahamad alongwith the son of the witness, wife of the witness and said Dilshadbi lifted the witness. The witness was put in an autorickshaw and was taken to government hospital at Kankavali. He stated that from the said hospital he was taken to a hospital at Kolhapur where he was an indoor patient for 20 days. The said witness was cross-examined on the location of his house. He stated that cattle shed of Noormahamad abuts his house on its northern side. Near the cattle shed of Noormahamad, there is the house of Hamid Imam Navalekar and the house of Abdul Imam Nawalekar is at some distance. He stated that the house of the accused was on the eastern side of (7) his house. He stated that there is an open space having area of 17 gunthas between his house and that of the accused. He admitted that there is a streamlet at distance of 400 to 500 ft on the southern side of the house. The passage of streamlet is used as lavatory by the villagers. He admitted that the people are residing in the houses near his house. He admitted that the 1st respondent Hamid was trying to get the land admeasuring 17 gunthas in between his house and the house of the accused. He stated that there were two groups in the village since two to four months prior to murder of son of Babalal. He admitted that he belonged to the group of Babalal whereas accused belonged to the rival group. He stated that since the formation of these two groups, members of one group were not on talking terms with the members of the other group. 4. In the cross-examination he stated that for last about 10 years he was using spectacles. He stated that in December there is a fog in the village in the morning hours. He stated that he returned to the compound of his house after answering the call of nature and then he was attacked by the accused. He admitted that he has not stated in the complaint filed before the police that he was in the compound of his house when he was (8) attacked. He admitted that in the complaint he has not stated that he was made to fall down and he was hit on his thigh. He stated that as far as the weapon (muddemal article No.5) is concerned, it can be found with every agriculturist in the area. He stated that he had not noted any identification mark on the weapon before the Court. He stated that he was unable to state definitely that the accused had used the said weapon for assaulting him. In the cross-examination he denied that there was darkness at the time of incident. 5. P.W.No.2 Gaus Ismile Nawalekar is a panch witness. He stated that he alongwith other panch witnesses was taken by the police to the government hospital at Kankavali at about 2.00 p.m on 11th December 2004. He stated that the P.W.No.1 produced a lungi and a bush shirt before the police in their presence which was in his possession. He stated that there were blood stains on lungi. He stated that there were only two large blood stains on the shirt produced by the P.W.No.1. He proved the panchnama in the evidence. In the cross-examination he stated that panchanama of the seizure of the clothes was recorded in the passage of the hospital. In the cross-examination he admitted that when the clothes were brought by the police he was in (9) passage. In response to the Court question he stated that P.W.No.1 handed over the clothes to police and he could not see that from the passage. In the further cross-examination he stated that he was unable to tell in which ward P.W.No.1 was admitted. He stated that the police had told him and other witnesses to wait in passage as they were bringing the clothes. He stated that they were waiting till the police brought the clothes. He stated that he saw P.W.No.1 from the door of the wall. 6. P.W.No.3 Mahendra Shankar Tambe is another panch witness. He is the panch witness to the recovery panchanama of the alleged weapon of assault at the instance of the 1st respondent. He stated that accused No.1 disclosed that he had hidden the weapon under the hay in his house. He thereafter deposed that as to how he alongwith police proceeded to the house of the 1st accused and the weapon was found. He identified the weapon forming part of the muddemal property. In the cross-examination he admitted that length of the weapon was not measured. He admitted that the police did not affix a chit bearing the signature of the panch witnesses on the said muddemal article. He admitted that the entire weapon was rusted and there is no (10) specific identification mark. He admitted that it was not mentioned in the panchnama that the weapon was rusted. 7. P.W.No.4 is Dilshad Noormahamad Navlekar. In her examination-in-chief she stated that incident occurred at 8.00 p.m when she was working in cattle shed. She stated that on that days he was working in the cattle shed. She stated that after hearing the cries of P.W.No.1 she rushed out. She stated that accused No.1 had caught hold of P.W.No.1 at his waist by his arm. She stated that as to how the respondent No.1 gave a blow on left four fingers of P.W.No.1. The witness was extensively cross-examined by the prosecution. 8. P.W.No.5 Subhash Laxman Patil is the Investigating Officer. P.W.No.6 is Ramzan Ahmad Ali Navlekar. In paragraph 2 of his examination-in-chief he has narrated the incident as under: "2. At about 8.00 a.m on 11.12.1994 I was proceeding towards Mach after taking cowdung from Dilshadbi. Then my father was returning after answering call of nature. By that time (11) both the accused came there and accused Shabbir caught hold of the waist of my father in the grief of his arms. Then my father raised shouting. Myself was shouted saying (Oh Mother, come out and rush here. The Nacharej are beating father). My mother and Dilshadbi were coming to us. By that time accused Hamid raised a scythe to give a blow of it on the head of my father. However, my father raised his left hand and held over his head. Hamid gave a blow of scythe which hit on the left fingers of my father. All the four fingers sustained bleeding injuries and suspended." He stated that at the time of incident though he and his father (complainant) shouted no one came to the spot. 9. P.W.No.7 is Ganpat Babu Merkar who was attached to Kankavali police station on the relevant date. He stated that on 12th December 1994 for the first time he inquired about the weapon to the 1st respondent at 5.15 p.m. He stated that he police returned from the Court by 5.15 p.m. He admitted that in the police custody register of 12th December 1984, it is mentioned that the respondents were taken out of custody at 2.00 p.m and (12) returned at 5.30 p.m on the same day. He stated that the 1st respondent was arrested at 2.30 p.m on 11th December 1994. P.W.No.8 is Dr.Sau Pushpanjali Patil who has described the two injuries found on the person of the P.W.1. The first one was sutured wound over left hand, dorsal aspect, admeasuring 8 cm. in length and second one was a sutured wound over dorsal aspect of right thigh, measuring 10 cm in length. He stated that injuries could be caused by the instrument which is muddemal article No.5. 10. P.W.No.9 is Diwakar Sawant who was again attached to Kankavali police station. He forwarded the blood samples of the complainant and blood stained towel and clothes of the 1st respondent to the Chemical Analyser. P.W.No.10 is Dr.Shivaji Jagannath Pawar. He was a Medical Officer attached to Rural hospital at Kankavali. He stated that three injuries were found on the person of P.W.No.1. The said injuries read thus: "1. Incise wound on left metacarpo-phylangeal joint of left hand, excluding thumb, measuring 6 cm X 1 cm deep to skin of palm cutting all tendomos, blood vessels of these joints. (13) 2. Incised wound to the inner aspect of left thumb, measuring about 1 cm X 1 cm. 3. Incised wound on the posterior aspect of right thigh, measuring 6 cm X 3 cm." 11. The learned A.P.P submitted that the evidence of P.W.No.1 is very consistent as regards the assault made by the accused by using the weapon. He submitted that the evidence of the eye-witnesses is also consistent. He submitted that minor discrepancies in the evidence do not affect the substratum of the case of the prosecution. He submitted that the only conclusion which could have been arrived at is a conclusion of the guilt of the 1st respondent. He submitted that interference is called for in this appeal against acquittal. The learned counsel appearing for the 1st respondent supported the impugned judgment. 12. I have carefully considered the submissions. I have perused the evidence. The station diary of Kankavali police station shows that the police recorded the entry of the injury sustained by P.W.No.1 (14) complainant at about 10.15 a.m on 11th December 1994. The F.I.R at Exhibit 22 shows that entry of the same was made at 1.30 p.m on the same day. Thus, the learned Judge has held that there is a delay in recording the F.I.R for which there is no explanation. Another aspect considered by the learned Judge is regarding recovery of the weapon. It is alleged that the 1st respondent made a disclosure statement on 12th December 1994 while in custody. The lock-up register shows that on 12th December 1994 the 1st respondent was taken from the police lock room for the purposes of producing him before the Court. The entry in the said book shows that the 1st respondent returned to the police lock-up at 5.30 p.m. The register shows that the 1st respondent was taken out of the lock up at 3.00 p.m and he returned at 5.30 p.m. On the other hand, the alleged memorandum at Exhibit 27 shows that the 1st accused made a statement at about 5.15 p.m when he was in custody. The learned Judge observed that P.W.No.7 had no explanation for the entries made in the police custody lock-up register. The learned Judge came to the conclusion that it is very difficult to believe the recovery panchnama at Exhibit 28 on account of this discrepancy. 13. The learned Judge referred to the evidence of (15) Dr.Shivaji Pawar as well as Dr.Pushpanjali patil. The learned Judge found that Dr. Pushanpanjali Patil found only two injuries whereas three injuries were found by Dr.Shivaji Pawar on the person of P.W.No.1. 14. Admittedly, the accused and the P.W.No.1 complainant belonged to two rival groups and there was some kind of enmity between the parties. In the context of this admitted position, the learned Judge has viewed the delay in recording F.I.R and has come to conclusion that prosecution has not established the guilt beyond a reasonable doubt. 15. The view taken by the learned trial Judge is certainly a possible view. The Apex Court has repeatedly held that the order of acquittal further strengthens the presumption of innocence and only for compelling reasons that interference can be made with the order of acquittal. Hence, no interference is called for. Appeal is accordingly dismissed. (A.S.Oka,J)