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2012 DIGILAW 1501 (BOM)

Ali Mehboob Shaikh v. State of Maharashtra

2012-08-08

R.C.CHAVAN

body2012
JUDGMENT This appeal is directed against the conviction of the appellants by the learned Additional Sessions Judge, Pune, for offences punishable under section 307 read with section 34 of the Penal Code and sentence of R.I. for 3 years with fine of Rs.1,000/- imposed upon each of them by the learned Judge on conclusion of Sessions Case No. 212 of 1993 before him. 2. The learned counsel appearing for the appellant nos. 1 and 3 stated that the appellant no. 2 - Suresh Shivram Naik died on 23rd May 2008 and has placed the death certificate on record. The death certificate is taken on record. The appellant no. 2 had expired on 23rd May 2008 during the pendency of the appeal. Therefore, appeal in so far as appellant no. 2 is concerned, abates. 3. Facts which are material for deciding this appeal are as under:- The victim Raju Saybu Kanadi was arrested on 5th February 1991 for the offences punishable under the Terrorist And Disruptive Activities (Prevention) Act. He was bailed out on 4th September 1991 and a condition was imposed upon him not to enter in an area within the radius of 70 kms. of Dehu Road. On 2nd February 1992, elections to the Cantonment Board were held. Appellant no. 4 was a candidate for the said election. It appears that the appellants spotted the victim at Dehu Road on 2nd February 1992 and asked the victim to campaign for appellant no. 4, the victim refused. Thereafter, in the same evening at about 7.30 p.m., all the appellants entered the house of the victim, dragged him out and had beaten him with knife, chopper, swords, etc. They allegedly left believing the victim to be dead but the victim was conscious and was taken by his friends to Hardikar Hospital at Pune. There the victim gave his name as Prakash Reddy. He was treated at the Hardikar Hospital. It seems that the victim was arrested on 30th December 1992 for committing breach of condition imposed upon him and thereafter, he gave report about the incident of 2nd February 1992. Thereafter, on 6th January 1993, a certificate was obtained from the Hardikar Hospital that the victim who had given his name as Prakash Reddy had suffered those injuries. The victim had also been sent to the Sasoon hospital, Pune, where he was examined by the medical officer there. Thereafter, on 6th January 1993, a certificate was obtained from the Hardikar Hospital that the victim who had given his name as Prakash Reddy had suffered those injuries. The victim had also been sent to the Sasoon hospital, Pune, where he was examined by the medical officer there. After registering the offence, police recorded statements of witnesses and on completion of investigation, sent up the charge sheet to the Court of Judicial Magistrate First Class, Vadgaon Mawal and committed to the Court of Sessions at Pune. 4. The learned Additional Sessions Judge, Pune charged the appellants for offences punishable under section 307 read with 34 of the Penal Code. Since they pleaded not guilty, they were put on trial at which the prosecution examined nine witnesses in its attempt to bring home the guilt of the appellants. After considering the prosecution evidence in the light of the defense of denial, the learned Judge convicted and sentenced the appellants as aforementioned. 5. Being aggrieved by the conviction, the appellants have preferred this appeal. The conviction of appellant no. 4 was suspended till the disposal of the appeal by order dated 22nd December 2006. 6. I have heard the learned counsel for the appellants and the learned APP for the State and with the help of both of them, I have gone through the evidence on record. PW 1-Dr. Mohan Dehase had examined the victim on 31st December 1992 and found 13 healed injuries. He proved medical certificate at Exhibit-19. PW 2-Dr. Ashwin Parikh was working in Hardikar Hospital. He stated that on 2nd February 1992 at about 9.00 p.m., a person giving his name as Prakash Reddy had been admitted to the hospital and he proved the certificate at Exhibit-21 in respect of the injuries observed by him. 7. PW 5-Maganlal was an eyewitness who has turned hostile. PW 7-Shantilal only called for ambulance for sending the victim to hospital. PW 3-Husnamma is the sister of the victim. PW 4-Sahebu is the father of the victim. PW 6-Gangubai is the victim's acquaintance and a neighbour and PW 8-Raju is the victim himself, who state about the assault by the appellants on Raju. PW 9-PSI Jadhav conducted the investigation. 8. PW 3-Husnamma is the sister of the victim. PW 4-Sahebu is the father of the victim. PW 6-Gangubai is the victim's acquaintance and a neighbour and PW 8-Raju is the victim himself, who state about the assault by the appellants on Raju. PW 9-PSI Jadhav conducted the investigation. 8. As pointed out by the learned counsel for the appellants, in this case though the incident is supposed to have taken placed on 2nd February 1992, neither the victim himself nor any of his relatives or his friends thought it fit to report the incident to the police. Even at the Hardikar Hospital, the victim had not stated as to how he had sustained injuries or who was the author of the injuries. PW-8 Raju has stated in his examination-in-chief itself that Raju Raddi and Ramesh Talwari took him to the Hardikar hospital. They have not been examined. It is queer that they too did not find it necessary to report the incident to police after seeing their friend, having suffered such injuries. Thus, the only evidence about the identity of the appellants as the authors of the injuries sustained by the victim come from the victim, his family members and his neighbour, who is also his friend. Incidentally, the evidence of PW 6-Ganjubai would show that on 2nd February 1992, she had been to Bazar and while returning she saw accused nos. 1 and 4 beating the victim. She states nothing about accused nos. 2 and 3. It is obvious that Gangubai has not seen the incident. It is possible that Gangubai may not have known the accused nos. 2 and 3 and therefore, may not have named them, but she could have told that accused nos. 1 and 4 with some unknown persons beat up the victim. In any case, when all the accused persons were before the Court and if all the accused persons were into beating the victim, she could have stated all four of them were involved in the assault. 9. The evidence shows that all the interested witnesses have indulged in material improvements in their story. In any case, when the incident was not reported to police for 10 months from the incident, the possibility that a twisted and improved version is made out to the police, should have been considered by the learned Trial Court while appreciating evidence of these persons. In any case, when the incident was not reported to police for 10 months from the incident, the possibility that a twisted and improved version is made out to the police, should have been considered by the learned Trial Court while appreciating evidence of these persons. The evidence was thoroughly unreliable and the learned Judge should have so concluded. 10. In view of this, the appeal is allowed. Conviction of appellant nos. 1, 3 and 4 for offences punishable under section 307 r/w section 34 of the Penal Code and sentence imposed, is set aside. Appellants are acquitted of the said offence. Appeal allowed.