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2013 DIGILAW 2494 (BOM)

State of Maharashtra v. Alaram Ujarsingh Halami

2013-12-04

A.B.CHAUDHARI, Z.A.HAQ

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JUDGMENT A. B. CHAUDHARI, J.:- This is an appeal filed by the State against acquittal of the respondent of the offence of murder. 2. In support of the appeal, Mr. Ahirkar, learned A.P.P. for the State, assailing the judgment of the trial court argued that there is perversity on the part of the trial court in the matter of appreciation of evidence and by relying on the immaterial, irrelevant omissions, the trial Judge has acquitted the respondent-accused. He, thereafter, submits that the ocular testimony of PW1 and PW4 has wrongly been rejected by the trial court and therefore, it is a fit case for reversal of judgment of acquittal. 3. Per contra, Ms Haideri, learned counsel (appointed) for the respondent-accused, supported the impugned judgment and took us through the evidence of PW1 and PW 4. She argued that the trial Judge has discussed the evidence, appreciated the same after marshalling the facts and has come to the conclusion that no finding of conviction could be recorded. At any rate, according to her, if benefit of doubt is extended to respondent - accused, no interference could be made in the appeal against acquittal by the High Court. 4. We have perused the impugned judgment and order recorded by the trial court. We have seen evidence of PW 1and PW4. PW4 did not say a word against the accused about the assault by him. Therefore, in our opinion, PW 4 is not an eye witnesses, So far as evidence of PW1 is concerned, there are material omissions which are fatal to the prosecution. We have checked up from the record whether the omissions are really the material omissions and whether were rightly taken into consideration by the trial Judge for disbelieving the said evidence. Instead of repeating the evidence, we quote the relevant para from the judgment of the trial court, which reads thus: "14. .....At the same time it could be gathered that Shambai rushed to the field of this witness and narrated the incident to him. When Shambai rushed to the field, accused was chasing mother of this witness, that means after a short while, incident must have taken place. It is not the case of the prosecution that the accused was continuously beating deceased Mankibai and therefore, this witness could come from such a distance and witness the incident. When Shambai rushed to the field, accused was chasing mother of this witness, that means after a short while, incident must have taken place. It is not the case of the prosecution that the accused was continuously beating deceased Mankibai and therefore, this witness could come from such a distance and witness the incident. Witness is mixing the things seen by him with the things heard by him. Therefore, I feel that at this juncture, testimony of this witness should not be relied upon as a Gospel truth and, therefore, I would see the testimony of P. W.4 Shambai EX.19. According to her, at the relevant time, she was sprinkling water mixed with cow dung (sada). Then Mankibai was present in the Galli i.e. lane. The accused was also present there. The accused was then armed with crowbar and he was inflicting blows with the said crowbar on the arms of Mankibai. Then she rushed to the he field of Gila ram to inform him about the incident. In the cross-examination, defence brought on record that this witness was not engaged in sprinkling of Sad a in the courtyard that the accused was not engaged in beating her mother-in-law i.e. Mankibai. This fact in an omission in her statement before the police. Therefore, a suggestion was put to her that she had not stated the said fact to the police and, therefore, it is not recorded in her statement. The omission brought on record is fatal to the prosecution case. Witness appears to have seen the accused while causing hurt to deceased Mankibai on her arm. This witness did not state that the accused caused any hurt on the vital part of the body of deceased Mankibai. Other suggestions to the witness that at the relevant time she was in her house and she did not come out have been denied by her." 5. To sum up, we find no merit in the appeal filed by the State against the order of acquittal passed by the trial Court. In the result, we pass the following order. ORDER (i) Criminal Appeal No. 266/2001 is dismissed. (ii) Bail bonds of the accused stand cancelled. (iii) Fees of Ms F. N. Haideri is quantified at Rs.5000/-. Appeal dismissed.