Shahjad Shah S/O Haidar Shah v. Irfan Shah Akbar Shah And Another

1411appa507.16.odt

IN THE HIGH COURT OF JUDICATURE AT BOMBAY

NAGPUR BENCH AT NAGPUR CRIMINAL APPLICATION (APPA) NO.507/2016 IN CRIMINAL APPEAL NO. /2016 Shahjad Shah s/o Haidar Shah ...Versus...

Irfan Shah Akbar Shah and another - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Office Notes, Office Memoranda of Coram, Court's or Judge's orders appearances, Court's orders of directions and Registrar's orders - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Shri J.B. Kasat, Advocate for applicant Shri S.C. Bhalerao, Advocate for respondent no.1 Mrs. A.R. Kulkarni, APP for respondent no.2 CORAM : PRASANNA B. VARALE AND ARUN D. UPADHYE, JJ.

DATE : 14.11.2017 1.

Heard.

2.

The learned Counsel for the applicant by inviting our attention to the copies of depositions of the witnesses placed on record along with Pursis dated 14/4/2017 submitted that the learned Additional Sessions Judge, Amravati failed to consider the evidence in its proper perspective. He submitted that a dying declaration recorded by the Executive Magistrate is one of the clinching evidence against the accused and the said dying declaration stood the test and on an erroneous presumption the said dying declaration is kept out of consideration by the trial Court. He then submitted that the learned trial Court also failed to appreciate the evidence of P.W.4. The presence of the accused

1411appa507.16.odt at the time of incident and on the spot of the incident is though clearly established, the learned trial Court failed to consider even this aspect.

3.

Leave to file appeal is granted. The appeal is admitted. Call for record and proceedings.

4.

Learned Counsel Shri Bhalerao waives notice of hearing for respondent no.1. Learned Additional Public Prosecutor Mrs. Kulkarni waives notice of hearing for respondent no.2.

JUDGE JUDGE Wadkar