1 cri-appeal-719-10 pdp IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NO. 719 OF 2010 Hussain Mahmood Siraji .. Appellant Vs. Sayed Ali Akbar Rizvi and ors. .. Respondents Mr. Hakim Salim A.R. for appellant. Mr. Nitin Sejpal for respondent no.1. Mrs. M. M. Deshmukh, APP for State. CORAM: B. H. MARLAPALLE & RANJIT MORE, JJ. FEBRUARY 28, 2011. P.C. 1. We have heard the learned counsel for the appellant- complaint. This appeal under Section 372 of Cr.P.C. is directed against the order of acquittal passed by the learned Ad-hoc Additional Sessions Judge for Greater Mumbai9 in Sessions Case No. 518 of 2009 on 11/3/2010. As the appeal is against the order of acquittal, we have called for the R & P, 2 cri-appeal-719-10 perused the same and the learned counsel for the appellant also placed before us the oral depositions copies of all the nine witnesses examined by the prosecution and, therefore, we are deciding this appeal at the admission stage itself. 2. As per the prosecution case, Farnaz, the sister of the appellant (PW 4 – Hussain Siraji) was married to the accused in the year 1995 and from the said wedlock she begot two sons. However, Farnaz returned to her parents’ home in November 2007 along with her children and the accused divorced her on 15/2/2008. One year later i.e. on 26/2/2009 at about 10 a.m., the complainant was driving his motorbike and he saw the accused standing at the Babulla Tank Junction in the direction of J. J. Hospital. Accused took out a knife from his pocket and inflicted two blows on the neck and throat of the complainant, resulting into bleeding injury. The complainant straightway went to the J. J. Hospital where he was admitted and was treated by the doctor. He was shifted to the ICU for some time and he came to be discharged on or about 7/3/2009. Medical Certificate at Exh. 27 was placed on record. The accused was arrested on 27/2/2009 in the course of investigation and he claimed that he was unnecessarily implicated in the case and he was not present at the spot of the incident. 3 cri-appeal-719-10 3. PW 5 – Anis Mohd. Hussain Kapadiya claimed to be the eye witness by the prosecution. He claimed to have seen the incident i.e., the assault inflicted by the accused on the complainant with knife at about 10.15 p.m. at the the spot of the incident and he was shocked and, therefore, he straightway went to the police station. In his examination-in- chief, he stated that he gave a call to his friend – complainant who was on his motorbike, but the complainant did not hear his shouts. At that time, the accused came there, there was exchange of some words between the two and the accused gave a blow of knife on the left side of the neck of the complainant when the complainant was riding his motorbike. In his cross-examination, PW 5 admitted that he had not gone to meet his friend i.e. the complainant even on 27/2/2009. He also admitted that he went to the police station between 11 to 11.30 p.m. on 27/2/2009 as one Gulab Razak told him to go to the police station and more so when he was an eye witness. He also told that after the occurrence of the incident, he had not seen the accused. He also admitted that at the time of the incident, there was a heavy traffic on the spot of the incident. He also admitted that he had not met the complainant in the hospital till he 4 cri-appeal-719-10 was discharged. The trial court, therefore, discarded PW 5 as a reliable witness and rightly so. 4. In addition to the evidence of the complainant – PW 5, PW 8 – Sushil Bangale, Investigating Officer, PW 9 – Chandrakant Ahire. PSI and PW 6 – Dr. Harshal Gawai, who was attached to J. J. Hospital are the material witnesses. While PW 6 was in the witness box before the trial court, the medical case papers at Exh. 30 were placed on record and in his cross-examination, PW 6 clearly admitted that when he recorded the case history he was told that the complainant was attacked by some unknown person of Dongri area outside Mughal Masque and this medical history was noted down by him as narrated to him by the patient himself and in his own handwriting (page 7 of the medico legal case papers Exh.30) 5. The complainant claimed that there were two assaults inflicted by knife by the accused while he was on the motorbike on 26/2/2009 at about 10.15 p.m. However, the medical certificate at Exh.27 did not disclose the second injury. The medical evidence as came before the trial court through PW 6 did not indicate that if the complainant was not treated, it would result in death in the normal course. Though the injury around the 5 cri-appeal-719-10 neck was stated to be grievous, it was not specifically brought before the trial court that the said injury, if not treated, would have caused death. 6. Even otherwise, the relationship between the parties was not normal, despite the fact that more than one year had passed by after the complainant’s sister was divorced by the accused. Complaints were filed against the complainant by the accused. The assessment so made of all the circumstances by the trial court and the final conclusion that the prosecution could not prove its case, firstly, of attack by the accused on the complainant and secondly, the injury being of such a character that if not treated, it would have resulted in the death, does not suffer from any error. The appreciation of evidence, as made by the trial court, does not call for any reconsiderations at our hands and, therefore, this appeal must fail at the threshold. 7. The appeal is hereby dismissed. R & P be returned forthwith. (RANJIT MORE, J.) (B. H. MARLAPALLE, J.)