AYUBKHAN AMIRKHAN PATHAN Vs. STATE OF MAHARASHTRA

JUDGEMENT

(1.) THESE two Criminal Appeal Nos. 56 of 2014 and 73 of 2014 have been filed by the State of Maharashtra and the complainant - Smt. Vijaya Dilipsingh Shirke against the judgment and order of acquittal of accused Nos. 2, 6, 7, 8, 12, 14 and 16. Learned Public Prosecutor Mrs. B.H. Dangre submitted that the learned trial Judge has recorded reasons which are clearly perverse in recording the acquittal of these accused persons. Referring to the entire evidence that was read over to us by the Counsel for both the parties, she submitted that on the same evidence on which eight accused persons have been convicted, these accused have been acquitted for the reasons which are perverse, flimsy and has, thus, caused miscarriage of justice to the State. She then submitted that in the substantive evidence of PW 26 and PW 33, these accused have been specifically named and even then learned trial Judge has for no good reasons recorded the order of acquittal. The Public Prosecutor relied on the arguments made by her in reply to the appeals filed by the convicted accused.

(2.) PER contra, learned Counsel appearing for these accused persons, who have been acquitted, vehemently opposed these appeals against acquittal and submitted that this Court should not interfere with the order of acquittal looking to the settled legal principles in relation to the appeal against acquittal. The High Court would not substitute its view merely because second view is possible. All the defence Counsel then submitted that it is not that the acquittal was recorded by the learned trial Judge for any flimsy reasons and on the contrary as specifically pointed out by Mr. A.V. Gupta, learned Adv., for the defence, that the acquittal was recorded by the learned trial Judge for want of other material and corroborative evidence and circumstances, since, according to trial Court, testimony of PW 26 and PW 33 was not supported by other material circumstances or corroborative evidence. All the learned Counsel for the respective respondents - acquitted accused, therefore, prayed for dismissal of these appeals against acquittal.

(3.) WE find from the careful reading of the entire judgment that except the above reasons, no reasons appear in the judgment for recording the order of acquittal of these accused persons. In fact, it is paradoxical. We have already discussed the evidence of the witnesses including the witnesses PW 26 and PW 33 and also indicated the names of these acquitted accused in bracket for emphasis. We have discussed in detail about the trustworthiness of the evidence of these two eye -witness in so far as convicted accused persons are concerned. Upon careful perusal of the entire evidence over and again for the purposes of deciding the appeals against acquittal and keeping in mind the set principles in the matter of appeal against acquittal, we find that from the evidence which we have carefully pondered over while deciding the criminal appeals filed by the appellants -accused persons, trial Judge has recorded no reasons as to why he recorded the order of acquittal of these accused persons. There is, thus, a clear perversity in our opinion and, in fact, the High Court is entitled to interfere if there is perversity on the part of trial Judge in recording order of acquittal, or rather High Court is under a duty to interfere when there is voluminous evidence against these acquitted accused persons. We find in the instant case that as we have already extracted evidence in our judgment while deciding the criminal appeals filed by the accused persons from which it is clear that out of these acquitted accused persons, except accused No. 6 - Mayur Chauhan, accused No. 8 Rajesh Kadu and accused No. 14 - Sandip Sanas, all the others, I.e., accused Nos. 2 - Mangesh Chavan, 7 -Pandurang Injewar, 12 - Mahesh Damodhar Bante, and 16 - Maroti alias Nawa Walake have been duly named, identified on 21st June, 2015 itself by PW 26 and PW 33 whom we have believed as the eye -witnesses.