1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPLICATION NO. 683 OF 2008 WITH CRIMINAL REVISION APPLICATION NO. 43 OF 2008 The State of Maharashtra. ... Applicant/Appellant. (Mahim Police Station (Orig. Complainant) C.R.No.311/1997) V/s. 1. Tariq Ayub Ansari Age 42 years, Occu. Business, R/o. 1, Merry Niketan, Parkar Estate, L.J. Road, Mahim, Mumbai-400 016. 2. Mohmed Arif Ayub Ansari Age 44 year, Occu. Business, R/o. Room No.4, First Floor, Green Cottage, Wanja Wadi, L.J. Road, Mahim, Mumbai-400 016. 3. Smt. Saleha Mohd. Ayub Ansari Age 60 years, Occu. Housewife, R/o. Room No.4, First Floor, Green Cottage, Wanja Wadi, L.J. Road, Mahim, Mumbai-400 016. 4. Farhad Tariq Ansari Age 35 year, Occu. Housewife R/o. 1, Merry Niketan, Parkar Estate, L.J. Road, Mahim, Mumbai-400 016. 2 5. Saida Arif Ansari, Age 31 years, Occu. Housewife R/o. Room No.4, First Floor, Green Cottage, Wanja Wadi, L.J. Road, Mahim, Mumbai-400 016. 6. Noorjahan Imtiyaj Ansari Age 40 years, Occu. Housewife R/o. Paradise Apartment, Wanja Wadi Lane, L.J. Road, Mahim, Mumbai – 400 016. 7. Zahid Mohd. Ayub Ansari Age 38 years, Occu. Business R/o. Room No.7, 2nd floor, Parkar Wadi, Mahim, Mumbai – 400 106. 8. Abdul Gafoor Abdul Hakim Khan, Age 65 years, Occu. Retired R/o. Gaiwadi, Patel Chawl, Gr.floor, Room No.37, Wanja Road, Mahim, Mumbai – 400 016. 9. Hashim Ismail Darraya Age 57 years, Occu. Business(Welder) R/o. 76-B, Mohd. Ali Penkar Chawl, Room No.4, Wanja Wadi, Mahim, Mumbai-400 016. 10. Ahmed Kunji Ali Shaikh Age 82 years, Occu. Retired R/o. Ground Floor, Green Cottage, Wanja Wadi, L.J. Road, Mahim, Mumbai – 400 016. 3 11. Mohmed Ayub Hyder Ansari @ Mama Age 70 years, Occu. Tailor, R/o. Room No.4, First Floor, Green Cottage, Wanja Wadi, L.J. Road, Mahim, Mumbai-400 016. ... Respondents (Orig. Accused Nos.1 to 11) .... Ms. M.M. Deshmukh, A.P.P. for the State. Mr. B.D. Joshi for Respondents 1 to 5, 6 & 8 to 11. Mr. S.R. Pasbola for Respondent 7. ..... CORAM : F.I. REBELLO & K.U. CHANDIWAL, JJ. DATE : 26TH JUNE 2008. JUDGMENT (PER K.U. CHANDIWAL, J.) :- The State has come in Appeal challenging legality of the Judgment and Order of acquittal dated 15.11.2007 passed by the Additional Sessions Judge, Borivali (Division) Dindoshi, Mumbai in Sessions Case No.1090 of 1997. 2. There was dispute between the Accused persons and the 4 complainant's group in relation to the immovable property, which has gone to Civil Court and even with Police at Mahim Police Station. On 3.9.1997, at the Green Cottage, Wangewadi, Mahim, in the open space some persons were dumping soil and Irfan, the deceased has objected for the same. No sooner Irfan obstructed the persons from dumping soil, Accused No.11 Ayub Hyder Ansari told those persons to dump the soil and he would see as to who is obstructing him. 3. The case reveals that due to such altercation, Accused No.11 summoned his sons and other relatives. Consequently, Accused No.7 Zahid, Accused No.1 Tariq Ayub Ansari and ladies members also rushed. They had bamboo stick and knife, hockey stick. According to the prosecution Tarique (Accused No.1) assaulted hockey stick on the head of the complainant and Accused No.2 also assaulted complainant at his right hand. Irfan fall on the ground due to attack. Accused No.7 allegedly gave knife blow on his right and left side. It is in the evidence that Accused No.11 sat on the chest of Irfan due to which deceased Irfan could not move. However, Medical 5 Officer noticed the stab injuries to the said Irfan at his back side. This aspect also created a doubt as to who could be the assailant to the Irfan. It is pertinent that Accused Nos.1,3 and 11 have not disputed about their presence. However, the complainant in his F.I.R. (Exhibit 25) says that the accused formed unlawful assembly referring to Accused Nos.8, 9 and 11. The analysis of evidence of PW-1 and PW-6 indicate that Irfan and others were aggressor and Irfan did suffer injuries but it could not be to the credit of Accused No.7 or Accused No.11. It is material that there was only two stab injuries to Irfan which ruled out possibility of assault by a hockey stick. 4. PW-1 to PW-4 claims, Accused No.11 instigated his sons and all his three sons brought weapons at the command of Accused No.11 and started assaulting Irfan and the complainant. It is stated that when PW-2 and PW-4 came out of the house, at that time they saw Accused No.11 was sitting on the chest of Irfan. If so, Irfan could not suffer stab injury at his back. As per evidence of PW-9 Dr. Manju Sadarangani when Irfan was brought by Police, she had 6 recorded history of assault by stab wound on left side of chest on lateral aspect and she found two stab wounds on left side of the chest. One near tenth rib about 2 inches in length and deep inside and second on right side of chest, two inches deep on lateral side of the chest. As per the evidence, she did not find any other injury on the person of Irfan. However, PW-12 Dr. Sunil Kowali noticed three injuries namely : (i) Right 7th rib linear incision 2 inch x 1 inch x 1 inch; (ii) Left 6th and 7th rib linear incision 3 inches x 1 inch x 1 inch chest deep and query intra abdomen; (iii) Left 6th and 7th rib linear incision 2 inches x 1 inch x 1 inch. Thus, there is variance regarding incised injuries in the evidence of PW-9 and PW-12 which is not explained. That apart as per evidence of PW-14 Dr, Vijay Kelwekar, who performed post mortem (Exhibit 74), he noticed 9 injuries to the deceased Irfan which he had referred in the post mortem notes. PW- 14 when compared the certificate issued by PW-12, confirmed that the injuries referred by PW-12 do not coincide and match with each other. Consequently, it is doubtful as to whether the person examined by PW-12 and PW-15 is the same person on whom the 7 post mortem was carried by PW-14. 5. The BMC employees who were dumping soil are not examined though their statement u/s. 161 Cr.P.C. were recorded. In fact, they were the best and creditable witnesses to throw light on the events. 6. It was observed that all the four eye witnesses changed their version to support medical evidence, that no sooner Accused No.11 was sitting on the chest of Irfan, Irfan was trying to stand up and in that moment Accused No.7 assaulted him by knife. However, all these facts are not reflected in the police statement recorded under Section 161 of Cr.P.C. The same is proved by the Investigating Officer. 7. As stated earlier witnesses claim that Irfan was assaulted by hockey stick and bamboo stick, however, medical officer did not find injuries like fracture and contusion on any part of the body of 8 Irfan. The evidence of PW-6 shows that the Accused persons were assaulted by Irfan and his other relatives. He did not see Accused No.7 assaulting Irfan. PW-1 is on cross terms with Accused No.10 and even at the Police Station there were altercations between them taking the matter to the highest Police Officers. Taking survey of entire evidence, the view taken by the learned Additional Sessions Judge in favour of the accused on the facts of the case, is a possible view and the benefit of doubt goes in favour of the accused. Consequently, we do not find this to be a fit case to grant leave. Hence, application for leave to appeal rejected and also the revision moved by the complainant. (F.I. REBELLO, J.) (K.U. CHANDIWAL,J.)