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2012 DIGILAW 1377 (BOM)

Sk. Kalu Sk. Ibrahim v. State of Maharashtra

2012-07-25

A.P.BHANGALE

body2012
Judgment : 1. This Appeal is directed against the Judgment and Order dated 16/10/1998, passed by learned IIIrd Additional Sessions Judge, Akola in a Sessions Trial No. 144 of 1997, whereby the original accused were convicted of the offences punishable under Sections 148,149, 307, 326, 323 and 452 of the Indian Penal Code and sentenced to suffer rigorous imprisonment for various durations of 3 months to 5 years and to pay a fine in the sum of Rs.500/-to 1000/-for various offences. In default of payment of fine, they were directed to undergo rigorous imprisonment for the durations of 15 days to six months respectively. The sentences were directed to run concurrently. 2. Heard the submissions at the bar. 3. The Facts, in nutshell, are as under: Injured witnesses Radhesham Shrivas (PW1), Sunil Ambhore (PW2), Devanand Jadhav (PW3), resident of Village Gadge Nagar, Akola knew each other as also the accused. First informant Radhesham, a Barber by profession, along with his brother Sundar went to the Hospital Opposite Sitabai College, Akola to attend Raju Rambharose, Ward Member of Gadge Nagar, who was admitted in the Hospital, for his hair dressing. After the dressing, Radhesham returned back to his house. Devanand (PW3) was also present at the Hospital, who, alongwith Sundar, was returning by a bicycle to their respective houses. Both had reached near Jaihind Chauk on their way to Gadge Nagar. The Bicycle of Devanand dashed against Luna driven by Sheikh Annu (accused no.1). There was exchange of words between them. Sk. Annu held collar and neck of Devanand. Sundar intervened and the ongoing quarrel was put to rest. On 3/03/1997, at about 3.30 p.m., accused nos.1 to 6 being armed with sword, knife, and pipes and being accompanied with 11 to 14 persons, approached to the house of the Complainant. Devanand was residing nearby. When the accused assaulted Devanand, the first informant and Sunil intervened in the quarrel. Accused nos.1 to 6 then assaulted Radhesham and Sunil by means of Arms. Sunil received bleeding injury to his nose. Radhesham received injuries on left hand, arm, wrist, left neck and on the back side. Radhesham, who had proceeded to his house, was chased and then dragged out of his house and assaulted by kick and fist blows. Radhesham and Sunil went to the Police station to lodge the Complaint (Ex.15). Sunil received bleeding injury to his nose. Radhesham received injuries on left hand, arm, wrist, left neck and on the back side. Radhesham, who had proceeded to his house, was chased and then dragged out of his house and assaulted by kick and fist blows. Radhesham and Sunil went to the Police station to lodge the Complaint (Ex.15). Crime No.56 of 1997 was registered under sections 307, 452, 147, 148, 149 of the Indian penal code. The injured who came to the Police Station were referred for medical examination. Investigation followed. 4. During the course of investigation, panchanama regarding the Scene of Offence and the spot was drawn. Statements of the injured were recorded and the Injury Certificates were collected. Clothes of injured and other articles were seized. The accused were arrested and investigated. Weapons of offence were recovered at the instance of the accused. The articles seized were sent to the Chemical Analyser for examination and the reports were received and then the accused were charge sheeted before the learned Judicial Magistrate, First Class, Akola (as deposed by Kartik Shankarrao Dak (PW9), P.I. Crime Branch, Amravati. The case was committed to the Court of Sessions at Akola. The accused pleaded not guilty to the charge and claimed trial. The prosecution examined ten witnesses. 5. The trial Court held that the prosecution has proved that, on or about 3/3/1997, at about 3.30 p.m. at Gadge Nagar, Akola, the accused armed with weapons such as Knife, iron pipes, sword etc. had formed an unlawful Assembly with 11 to 14 persons and indulged in use of force and violence and in prosecution of their common object, committed criminal trespass in the house of Devanand and Radhesham; murderously assaulted Devanand and caused grievous hurt to Radhesham and also assaulted Sunil Ramdas Ambhore. First informant Devanand (PW1) deposed regarding the F.I.R. (Ex.15) lodged by him. His blood stained clothes were seized under the Panchanama (Ex.17). He had identified the assailants in the Court and also attributed the specific role to the Offenders who assaulted him by means of pipe, knife and sword. Accused no.1 Kalu (deceased – who died during pendency of the appeal and against whom the criminal proceedings stood abated) was armed with Knife. Accused no.3 Shabbir was armed with sword. Other accused identified as SK. Salim (accused no.4), Bhurya @ Musa Hussain (accused no.6), Sk. Accused no.1 Kalu (deceased – who died during pendency of the appeal and against whom the criminal proceedings stood abated) was armed with Knife. Accused no.3 Shabbir was armed with sword. Other accused identified as SK. Salim (accused no.4), Bhurya @ Musa Hussain (accused no.6), Sk. Annu (accused no.1) were armed with sticks. Sunil Ambhore (PW2) also corroborated the evidence of the first informant and had also identified accused no.1 Kalu as the person armed with Knife, while he stated that accused Sk. Shabbir was armed with Pipe, accused Shaikhji was armed with Sword, accused Annu was armed with Pipe and others were also seen armed with Pipes. Blood stained clothes of Sunil were seized under the Panchnama (Ex.19). 6. Devanand (PW3) is another injured eye witness of the incident who deposed that he was assaulted by Pipe on his right leg when accused Shabbir, Shaikh, Annu, Kalu were armed and had trespassed in his house and assaulted him. The prosecution also examined eye witnesses Jagdish Bhadke (PW5) and Santosh Daberao (PW6), Balu Dhurve (PW7) as also the Medical Officer who gave evidence of having examined injured Radhesham and issued Injury Certificate in respect of him (Ex.22) and Injury Certificate (Ex.23) in respect of Sunil at the hospital. 7. Learned Advocate for the accused submitted that the Investigating Officer who had carried out the substantial investigation was not examined. Nature of the weapons used was not described by all the alleged eye witnesses and therefore, there was a gap existing between “must be proved“ and “may be proved ”. He prayed for giving benefit of doubt to the accused. He submitted that, at the most, the accused may be found guilty under Section 326 instead of Section 307 of the Indian Penal Code. In the alternative, he submitted that the accused were young when the alleged offences were committed and therefore, lenient view be taken regarding the sentence to be imposed. 8. Learned Advocate referred to the ruling in the case of TarakNath Singh and another vs. State of W. B. reported in 1998 SCC (Cri) 587 to argue that many years have passed and therefore, since the accused have undergone the substantive period of imprisonment in the jail, the sentence as already undergone may be imposed and the fine amount may be enhanced so as to compensate the injured. 9. 9. Having considered the impugned Judgment and Order in the light of the submissions at the bar and the citation of ruling (cited supra), I do not find any fault with the order of conviction. The conclusion as to finding of guilt which was arrived at by the learned trial Judge was on the basis of cogent, reliable and acceptable evidence and it was rightly concluded that the prosecution has proved the offences beyond reasonable doubt. However, considering the argument advanced on behalf of the appellants/accused that one of the appellant i.e. appellant Sk. Kalu Sk. Ibrahim has expired and appellant no.2 herein Sk. Salim was in jail from 4.3.1997 to 18.11.98 and appellant no.3 herein Sabirsha was in jail from 3.3.1997 to 18.11.1998 and that the incident had occurred long back in the month of March 1997 out of a quarrel and no past criminal history against the appellants is reported, the appellants may have an opportunity to reform themselves. Hence, instead of sending them to jail at this stage after lapse of 15 years or more from the date of incident, I think that the ends of justice would be met if the sentence of imprisonment is reduced to that already undergone by the appellants herein in the facts and circumstances of the case and the amount of fine is increased so as to ensure compensation to injured Devanand and Radhesham to be distributed equally between them if they claim it. Hence, the following order is passed. The appeal is partly allowed as under: The order of conviction is maintained. However, the sentences of imprisonment, as awarded, are reduced in the facts and circumstances of the case to that as already undergone and the amounts of fine, on each count, is enhanced to Rs 2000/-. In default of payment of fine, within six weeks from the date of this order, the appellants shall undergo further rigorous imprisonment for the period of one year together on all counts. The amount of fine if realised and if claimed by injured witnesses Devanand (PW3) and Radhesham (PW1), the same be distributed equally between them. The order is modified accordingly.