1 rma IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL REVISION APPLICATION NO. 19 OF 2001 Mohammad Javed Mohammad Ayub Punjabi ] Age : 42 Years, Occ : Business, ] R/o. 288, Baitul Ansar Building, ] Flat No. 106, Samadnagar, Bhiwandi, ] Dist. Thane. ] Applicant Vs 1. Sarjil Mohammad Ibrahim Momin ] @ Navaj Ahamad Ibrahim Momin, ] Age : 37 Years, Occ : Business, ] R/o.305, Baitul Ansar Building, ] Samadnagar, Bhiwandi, ] Dist. Thane. ] 2. State of Maharashtra ] Respondents Mr. P.R Arjunwadkar for the Applicant Mr. V.B. Konde-Deshmukh, APP for State None for Respondent no. 1 CORAM : SMT. V.K. TAHILRAMANI, J DATE : 22nd APRIL, 2010 ORAL JUDGMENT: 1. The petitioner - original complainant being aggrieved by the judgment and order dated 27.09.2000 passed by learned Joint J.M.F.C., Bhiwandi in R.C.C. NO. 480 of 1999 whereby the respondent-original accused came to be acquitted of the 2.REVN19-01 2 offence punishable under section 325 of the I.P.C. has preferred this revision. 2. The case of the complainant briefly stated is that he as well as the accused were residing in the same building. Some dispute arose in between the complainant and the accused on account of drainage and gutter of the building. On 10.06.1999 at about 3.00 p.m., the complainant saw the accused standing with a hockey stick. The accused questioned him about the water pipe whereupon the complainant informed the accused that only after the accused pays his contribution, he will get fault in the water pipe corrected. Thereupon, the accused started to scuffle with the complainant and gave blow of hockey stick on the thigh of the complainant. Thereafter, the complainant lodged F.I.R. 3. I have heard learned advocate for the applicant and learned APP for the State. I have perused the judgment and order passed by learned Joint J.M.F.C. and after anxiously considering the entire matter, for the reasons stated herein below, I am of the opinion that the judgment and order passed by learned Joint J.M.F.C. does not call for any interference. 4. In his evidence, the complainant has stated that the accused gave blow of hockey stick on the thigh of the 2.REVN19-01 3 complainant and thereafter he gave blow of hockey stick on the left side of his neck. However, it is noticed that it is not so stated by the complainant before the police. 5. As far as injuries are concerned, PW3, the Medical officer of I.G.M. Hospital has stated that no prior medical treatment by way of first aid was taken by the complainant prior to coming to I.G.M. Hospital. Further, the Medical Officer states that the complainant sustained injury on the left side of forehead. The complainant has not deposed as to how he sustained this injury. The complainant has not stated that any more blows of hockey stick were given by the accused to him nor has he deposed as to how he sustained injury on the forehead. It is the specific case of the complainant that though the concerned police advised the complainant to go to the I.G.M. Hospital at Bhiwandi, he first went to the Hospital of Dr. Akil Ansari. There he took medical treatment and then,he went to I.G.M. Hospital at Bhivandi. However, looking to the evidence of PW3, the evidence of the complainant stands falsified. Moreover, PW3 Medical Officer has admitted that the injuries sustained by the complainant were possible due to person falling on the road while running. 6. The prosecution has examined one more witness i.e PW2 Amir Momin. It is pertinent to note that though the incident 2.REVN19-01 4 took place in the building where both the complainant and the accused were residing, no witness from the building has been examined and only PW2 Amir who is not residing in the said building was examined. It is admitted by PW2 Amir that the complainant is his maternal uncle. Thus, it is seen that PW2 Amir is an interested witness and hence, his testimony will have to be assessed with great caution. 7. PW2 Amir stated that after hearing shouts of quarrel, he rushed to the spot and saw the accused giving a blow of hockey stick on the left thigh and on the ear of the complainant. However, the complainant is totally silent on the aspect of PW2 coming running to the spot. Thus, he does not speak about the presence of PW2 at all. On the contrary, the complainant has stated that the flat owners in the building took him to his flat. It is pertinent to note that the complainant has stated that the accused assaulted him on the thigh and neck whereas he was also found to have an injury on the forehead which is unexplained. On the other hand, PW2 does not state about the accused assaulting the complainant on the neck or on the left side of forehead. PW2 Amir has admitted that he heard shouts of quarrel, hence, he went to the spot, however, he did not try to rescue the complainant who was his maternal uncle. PW2 Amir has stated that the complainant fell on the ground, however, PW2 did not 2.REVN19-01 5 take the complainant to his flat but the other flat owners took the complainant to his flat. The complainant has come up with a totally different story. According to him, after receiving the blow of hockey stick, he became unconscious; this is not stated by PW2. Thus, according to PW2, the complainant was conscious. The various discrepancies raise serious doubt in the mind. 8. In addition to the above, it is also found that there are various lapses on the part of the prosecution. The Investigation Officer has not been examined in the present case. So also, though there was an eye witness i.e Altaf Arif Khan,he was not examined by the prosecution. No explanation has been furnished by the prosecution as to why this witness has not been examined. Though Altaf Arif Khan was residing in the same society where the incident occurred, yet he has not been examined by the prosecution. The prosecution has also not examined pancha witness regarding seizure of weapon i.e hockey stick. So also, no pancha witness regarding the spot panchanama has been examined by the prosecution. The various lapses on the part of the investigating agency have also largely contributed to acquittal of the respondent. Had the prosecution properly conducted the case, probably the case would not have ended in acquittal. However, looking to the fact that the incident 2.REVN19-01 6 occurred in the year 1999, the evidence and the fact that the offence is not that serious in nature, I am not inclined to interfere in the view taken by learned J.M.F.C. In view of all the above facts, the view taken by the learned J.M.F.C. is a reasonable and possible view. Hence, no interference is called for. Revision fails. Rule is discharged. [SMT. V.K. TAHILRAMANI, J.] 2.REVN19-01