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2017 DIGILAW 1848 (BOM)

Tannu v. State of Maharashtra

2017-09-07

R.B.DEO

body2017
JUDGMENT : Appeal is called out in the afternoon session. The counsel for the appellants was absent even on the last date of hearing i.e. 31.08.2017. This Court vide order dated 31.08.2017 had made it clear that if the counsel for the appellant does not work out the appeal on 07.09.2017, the appeal shall be decided on merit consistent with the dictum of the Hon'ble Supreme Court in Bani Singh and others vs. State of Maharashtra, (1996) 4 SCC 720 . With the assistance of Shri N.B. Jawade, the learned Additional Public Prosecutor, I have scrutinized the evidence on record. 2. The gist of the prosecution case is that on 28.03.2000, the appellants (herein after referred to as "the accused") assaulted one Syed Shadap with sword. The assault allegedly took place in the ground of the Corporation School at Bijli Nagar. The complainant-informant who was then P.S.I. attached to Police Station Sadar, Nagpur was returning to the Police Station after conducting a raid in relation to suspected offences under the Prohibition Act, when he noticed a commotion near the Corporation School at Bijli Nagar. The informant allegedly investigated and noticed that four persons were brutally assaulting one Syed Shadap with swords. The informant ordered from the spot. The first informant has conducted the investigation and presented the charge-sheet in the Court of Judicial Magistrate First Class who committed the case to the Sessions Court. The Sessions Judge framed charge at Exh.2. The accused pleaded not guilty and claimed to be tried. The defence of the accused is of total denial and false implication. 3. I must noticed certain striking features of the prosecution case. The injured who is examined as P.W.1 categorically stated in the examination-in-chief that he is not in a position to say whether the accused are the same boys who assaulted him. Interestingly, the said witness is not declared hostile. The version of the injured that he is not in a position to say that the accused were the assailants is therefore, binding on the prosecution. It may be noted that in the cross-examination the injured witness further admits "accused are not the assailants". The other witness who is touted as an eye witness to the incident is Mohd. Shoab (P.W.6). The said witness did not support the prosecution. However, even this witness was not declared hostile. It may be noted that in the cross-examination the injured witness further admits "accused are not the assailants". The other witness who is touted as an eye witness to the incident is Mohd. Shoab (P.W.6). The said witness did not support the prosecution. However, even this witness was not declared hostile. The only witness to the alleged assault is therefore, the informant. 4. P.W.7 claims to have witnessed the assault. It is P.W.7 who lodged the report on the basis of which the F.I.R. is registered. P.W.7 is also the Investigating Officer. I have no hesitation in coming to the conclusion that the very fairness of the investigation and the credibility of the testimony of P.W.7 is in serious doubt. The eye witness who is an informant and who is therefore, aware that the fate and liberty of the accused would rest on his testimony in the trial, ought to have declined-avoided to investigate the offence. In my considered opinion, the fact that the eye witness, informant, and investigator is the same person renders the investigation suspect. 5. The injured has refused to identify the accused as assailants. Indeed, the injured categorically admits that the accused are not the assailants. P.W.6 who the prosecution contends is an eye witness has also not supported the prosecution. In the teeth of such evidence, I am not persuaded to hold that the accused can be convicted of any offence much less under section 307 of I.P.C. on the basis of the testimony of P.W.7 that he apprehended the accused from the spot and that the accused were assaulting the injured. Firstly, the fairness of the investigation and Secondly, the evidence on record is grossly insufficient to bring home charge under section 307 of I.P.C. Liberty of the accused cannot be sacrificed at the alter of shoddy or unfair investigation and the sole uncorroborated version of a witness who has dawned multiple robes, that of an witness, informant and investigator. 6. The appeal deserves to be allowed. The appellants are acquitted of offence punishable under section 307 of I.P.C. 7. The bail bonds shall be stand discharged. 8. The fine amount paid, if any, by the appellants shall be refunded to them. 9. The appeal is disposed of accordingly.