.(1). IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NO.1492 OF 2004 Dildar @ Dillu Peer Mohd.Khan, ] Convict No.C-4555, presently ] confined in Nashik Road ] Central Prison,( N.R.C.P.) ] Nashik Road-422 101. ] ..APPELLANT -Versus- The State of Maharashtra. ] ..RESPONDENT. .... Mr.Arfan Saith, Adv. appointed for the Appellant. Mr.K.V.Saste, APP, for the State. .... CORAM : SMT.V.K.TAHILRAMANI,J. CORAM : SMT.V.K.TAHILRAMANI,J. CORAM : SMT.V.K.TAHILRAMANI,J. DATED : 1st July, 2008. DATED : 1st July, 2008. DATED : 1st July, 2008. ORAL JUDGMENT : ORAL JUDGMENT : ORAL JUDGMENT : 1. Through this appeal, the appellant-orig.accused has challenged the judgment and order dated 29th March, 2004 passed by the learned Additional Sessions Judge, Greater Bombay in Sessions Case No.117 of 2001. By the said judgment and order, the learned Sessions Judge convicted the appellant-orig.accused for the offence punishable under Section 307 of IPC and sentenced him to RI for eight years and fine of Rs.5000/-, in default, SI for six months. 2. The prosecution case, briefly stated, is as .(2). under :- . The accused was previously married to PW-2 Salma. Thereafter PW-2 Salma got married to PW-1 Mohd.Rafiq Ansari without obtaining divorce. It is the prosecution case that on 29th August, 2000 early in the morning the accused entered the house of PW-2 Salma and PW-1 Moh. Rafiq and assaulted PW-1 Mohd.Rafiq Ansari with a big stone on his head. Hence, complaint came to be filed by PW-2 Salma. 3. Charge came to be framed against the appellant-orig.accused under Section 307 of IPC. The appellant pleaded not guilty to the said charge and claimed to be tried. The defence of the accused is that of total denial and false implication. After going through the evidence adduced by the prosecution, the learned Sessions Judge has convicted and sentenced the appellant as stated in para-1 above. Hence, this appeal. 4. I have heard Mr.Sait the learned Counsel appointed for the appellant-orig.accused and Mr.Saste, the learned APP for the State. I have also perused the impugned judgment and order as .(3). well as the record pertaining to the present case. After carefully considering the matter, I am of the opinion that this appeal deserves to be allowed. 5. Mohd.Rafiq Ansari has been examined at the hospital. The injury certificate shows C.L.W. 4 c.m. X 2 c.m. bone deep. However, the certificate shows that the injury is simple in nature. No doctor has been examined in the present case. On the basis of the medical certificate, it cannot be said that the case would fall under Section 307 of IPC. 6. In order to prove its case, the prosecution has mainly relied on the evidence of PW-2 Salma. No doubt, Salma has implicated the applicant. She has stated that in the early hours of the morning the accused had entered into her house with a big stone in his hand and he hit that stone on the head of her husband Moh.Ansari and thereafter they took Mohd.Rafiq Ansari to the hospital. Even though PW-1 Mohd. Rafiq Ansari is the injured witness he does not implicate the accused. PW-1 Mohd.Rafiq Ansari has stated that on 28th February, 2000 he had slept in his house. At that .(4). time his wife Salma, Arti, Arjun and Arjun’s children were present in the house. Thereafter he found himself in the hospital and on regaining consciousness, he realized that he was hit over his left eye and some bandage was put on the same. Infact this witness has clearly stated that the accused did not visit his house after the marriage of witness with Salma. He has also stated that the accused has not come to his house when he was present in the house. 7. It was submitted by the prosecution that in view of the medical certificate, the case would fall under Section 324 of IPC. However, in my view there is no reliable material to show that it was the appellant who assaulted PW-1 Mohd.Rafiq Ansari and caused him injury. As stated earlier, the injured witness PW-1 Mohd.Rafiq Ansari does not implicate the appellant. Only PW-2 Salma has implicated the appellant. The incident has occurred early in the morning. It had taken place prior to 5:40 a.m. because at 5:40 a.m. PW-1 Mohd.Rafiq Ansari was already in the hospital and he had been examined by the Doctor and certificate Exh.19 came to be issued. PW-2 Salma has stated that it was raining on that day. So also PW-3 has .(5). stated that on that day it was raining and because of the rains lights were off. In such case, it is difficult to believe that in the darkness Salma could have identified the assailant. 8. PW-3 & PW-4 who are close relations of Salma also do not implicate the appellant. Infact, the evidence of these witnesses shows that they were not aware as to who is the assailant. PW-3 Arjun has stated that he heard the shouts of his daughter Arti saying "who is that" "who is that". PW-4 Arti has stated that the incident has taken place in the night. She heard some noise from the rear door. She tried to see who the said person was, but, she could not see the person hence she raised shouts "who is that" "who is that". PW-3 Arjun is the brother of PW-2 Salma and PW-4 Arti is the niece of PW-2 Salma. They were all residing together in the same house. As stated earlier, PW-1, PW-3 & PW-4 do not implicate the appellant. Only PW-2 Salma implicates the appellant. In this connection, it is pertinent to note that the injured witness himself does not implicate the applicant. Infact his case is that when he regained consciousness in hospital, he was told that he had met with an accident. This .(6). statement by the injured witness himself creates doubt about the veracity of the evidence of Pw-2 Salma. There is no other material which implicates the appellant. In this view of the matter, I am of the opinion that the conviction of the appellant under Section 307 of IPC deserves to be set-aside. There is no reliable and cogent material to show that the applicant assaulted PW-1 Mohd.Rafiq Ansari. Hence, I am of the view that no case is made out under Section 324 of IPC also. 9. In the result, the appeal is allowed. The judgment and order dated 29th March, 2004 passed by the learned Addl. Sessions Judge, Greater Bombay in Sessions Case No.117 of 2001 is set aside. The appellant- Dildar @ Dillu Peer Mohd. Khan is acquitted of the offence punishable under Section 307 of IPC. Appellant is in jail. He be set at liberty forthwith if not required in any other case. (SMT.V.K.TAHILRAMANI,J.) (SMT.V.K.TAHILRAMANI,J.) (SMT.V.K.TAHILRAMANI,J.)