ABBAS Vs. STATE OF MAHARASHTRA

JUDGEMENT

(1.) Original accused no.4 / appellant in Criminal Appeal No.775 of 2015 is dissatisfied on account of his conviction by learned Additional Sessions Judge, Aurangabad, holding him guilty under Sec. 304 Part II of the Indian Penal Code (IPC) and sentencing him to suffer seven years rigorous imprisonment and to pay fine. At the same time, State is also aggrieved on account of acquittal of accused nos.1, 2, 3 and accused no.4 / appellant from charge under Sec. 302 of the Indian Penal Code (IPC). FACTS LEADING TO TRIAL

(2.) Informant, deceased and accused are residents of same locality. Six months prior to 20/6/2010, there were quarrels between accused no.4 / appellant and informant, who are cousins. In that background, at around 08:30 p.m. on 20/6/2010, when informant's brother namely Imran Shah @ Lala Shah was standing near his house, at that time, accused no.4 Kalu started hurling abuses on Imran because of previous quarrel. Informant and his mother both heard noise and shouts and therefore, they both came out and they saw accused Kalu assaulting Imran. Accused Kalu rushed to his house and returned back with knife and he stabbed Imran on chest and all other accused present there, were fled away. Imran was shifted to hospital, but on examination, Doctor declared him dead. Resultantly, PW1 Irfan set law into motion by lodging report on the strength of which PW8 Pandit and PW9 Namdeo carried out investigation and chargesheeted all four accused. Learned Additional Sessions Judge, Aurangabad framed charges, allowed prosecution to lead its evidence and after recording statement of accused under Sec. 313 of the Code of Criminal Procedure and answers, he appreciated oral and documentary evidence and held that prosecution has established charge against accused no.4 Kalu, but only for offence under Sec. 304 Part II of the IPC and not for offence under Sec. 302 of the IPC. Remaining accused were given clean chit and hence, the above appeals. SUBMISSIONS On behalf of appellant :

(3.) Learned Counsel for the appellant in Criminal Appeal No.775 of 2015 would submit that prosecution had not proved its case beyond reasonable doubt. According to him, there is no independent witness, rather there are only interested witnesses like brother and mother of deceased. It is pointed out that though PW5 Sk.Wasim, a grocery shop owner is examined, he has not supported prosecution. According to learned Counsel several lapses, contradiction and inconsistencies appear in the prosecution evidence, more particularly, on the point of actual spot of incident. According to him, spot panchanama shows distinct place, whereas witnesses speak about occurrence taking place at a different place and therefore, the evidence of prosecution is full of ambiguities. He pointed out that recovery is also at the belated stage and therefore, even such circumstance is doubtful. Learned Counsel took us through the evidence of each of the prosecution witnesses and even answers given by them in their cross-examination and according to him, such substantive evidence of prosecution witnesses itself renders case of prosecution doubtful. Thus, according to him, with such quality of evidence, case of prosecution ought not to have been accepted by the learned trial Judge, but same having been done, he submits that there is need to re-appreciate and re-examine the evidence and therefore, he prays to set aside the judgment under challenge. On behalf of State :