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2014 DIGILAW 1286 (BOM)

Sheikh Shabbir v. State of Maharashtra

2014-06-19

M.L.TAHALIYANI

body2014
Judgment: 1. Heard learned counsel Ms. Haidari for the appellant and learned Additional Public Prosecutor Mr. Thakre for the respondent State. 2. This appeal is coming up for final hearing after 16 years of filing of the appeal. The incident had taken place in the year 1987. As such the appeal is being decided after about 28 years of the date of incident. 3. The appellant has been convicted for the offence punishable under Section 307 of Indian Penal Code and is sentenced to suffer R.I. for a period of three years and to pay fine of Rs.2000/- and in default to suffer R.I. for six months. The appellant was in custody from 11th February, 1998 till 30th August, 1998. The learned trial Court has directed that set off be given to the appellant for the period already undergone by him. The appellant was accused no.2. He was charge-sheeted along with accused Nos.1 and 3 for the offence punishable under Section 307 of I.P.C. 4. The incident in question had occurred at Teka Naka, Nagpur. The PW-2 - Trilochan Kedarnath Dubey was running a small hotel at Teka Naka, near a country liquor shop. His wife, PW-1-Kalawatibai was assisting him in the said business. The appellant was regularly visiting the shop of PW-1 and 2 and therefore, he was known to them. It is on 28th January, 1987 at about 8.15 p.m. that the appellant accompanied by accused Nos.1 and 3 had purchased eggs and wadas from the shop of PW-2. He, however, refused to pay the price and started abusing the PW-2. He went to the extent of taking out a knife and stabbing PW-2 in his abdomen. After the incident of stabbing, the appellant and his associates ran way from the spot. A severe injury was caused to PW-1. His intestine came out. He was removed to the Hospital. The F.I.R. was registered on the statement of PW-1 Kalawatibai for the offence punishable under Section 307 read with Section 34 of I.P.C. 4A. During the course of investigation, appellant and accused Nos.1 and 3 were arrested and their clothes were seized. During the course of further investigation, statement of PW-2 also was recorded. The statements of some other eye witnesses were also recorded. Spot panchnama was drawn. Articles seized during the course of investigation were sent to Chemical Analyzer. During the course of investigation, appellant and accused Nos.1 and 3 were arrested and their clothes were seized. During the course of further investigation, statement of PW-2 also was recorded. The statements of some other eye witnesses were also recorded. Spot panchnama was drawn. Articles seized during the course of investigation were sent to Chemical Analyzer. After completion of investigation, charge-sheet was submitted against the appellant and accused Nos.1 and 3. 5. The learned trial Court framed a charge for the offence punishable under Section 307 read with Section 34 of Indian Penal Code against the appellant and accused Nos.1 and 3 vide Exh.9. All of them pleaded not guilty and claimed to be tried. 6. During the course of trial, the prosecution has examined in all 13 witnesses. PW-1 is the wife of the injured. PW-2 is the injured himself. PW-3 is the Panch Witness. PW-4 is the Medical Officer who had examined the injured at Meyo Hospital. PW-5 had seen the PW-2 in injured condition. PW-6 was also the Panch Witness. PW-7 was present when clothes of two of the accused were seized by the Police at Police Station. PW-8 was on duty at Meyo Hospital. He has stated that statement of injured was recorded by the Head Constable Ramlal after obtaining medical certificate of fitness. PW-9 was working in the liquor shop adjoining the shop of PW-2. PW-10 was running a pan shop near the shop of PW-2. This witness has not supported the prosecution case and was declared hostile. PW-11 is also a Panch Witness. He has also not supported the prosecution case. PW-12 was attached to Panchpaoli Police Station as Police Inspector. He had received information from Meyo Hospital that PW-2 had been assaulted by some persons and he was admitted in the Hospital and PW-13 is the Medical Officer who had examined the PW-2 and had operated him. 7. Most of the Panch Witnesses and eye witness have not supported the prosecution case. The prosecution case is mainly based on evidence of PW-1, 2, 4 and 13. PW-2 has stated in his evidence that the appellant had visited his shop and had refused to pay for the eatables which he had purchased and had thereafter inflicted stab wound on his abdomen. His evidence is corroborated by the evidence of PW-1. I have gone through the evidence of both the witnesses. PW-2 has stated in his evidence that the appellant had visited his shop and had refused to pay for the eatables which he had purchased and had thereafter inflicted stab wound on his abdomen. His evidence is corroborated by the evidence of PW-1. I have gone through the evidence of both the witnesses. As far as the identity of the appellant is concerned, it is already stated that appellant was regular visitor to the shop of PW-2. As such he was known to PW-1 and PW-2 and both of them have stated his name in their evidence. Therefore, it was not necessary to hold identification parade in respect of the appellant. 8. The learned counsel Ms. Haidari during the course of argument has submitted that even if it is assumed for the sake of argument that the injury sustained by PW-2 was caused by the appellant, the appellant could be convicted for the offence punishable under Section 324 of I.P.C. only. It is submitted by Ms.Haidari that there was no intention on the part of the appellant to cause death of PW-2. 9. Before I advert to the argument of Ms. Haidari, it is necessary to go through the evidence of PW-4 and PW-13. Instead of reproducing the evidence of both the witnesses, it would be appropriate to read the evidence of P.W.13, because both the witnesses have described the injury in a similar manner. PW-13 had found a single stab injury on lower abdomen and omentem. According to him, the internal organs were also injured. He found perforating injury over small intestine 1" x 1/2" over anti mesentric border about 7' to 8' from D.J.Junction. He also found stab injury over small intestine about 6" distal to the 1st injury. The stab injury was found at anti mesentric border. One stab injury was found one feet distal to the mesentric border. Active bleeding was present. There was a tear in omentem about 1-1/2" x 1". Homeo peritoniem with clots was present. According to this witness, the injury was fatal and was sufficient to cause death in ordinary course of nature. 10. One stab injury was found one feet distal to the mesentric border. Active bleeding was present. There was a tear in omentem about 1-1/2" x 1". Homeo peritoniem with clots was present. According to this witness, the injury was fatal and was sufficient to cause death in ordinary course of nature. 10. If the evidence of PW-1, 2 and 13 is read conjointly, it will give clear impression that though there was no intention on the part of the appellant to cause death of PW-2, there was clear intention on the part of the appellant to cause injury to him described by PW-4 and PW-13. The said injury was sufficient to cause death in ordinary course of nature. Therefore, had the PW-2 died, the case of the appellant would have been covered by clause thirdly of Section 300 of I.P.C. As such the appellant had caused injury to PW-2 with such intention and under such circumstances that, had the PW-2 died, the appellant would have been held guilty of offence of murder. In my considered opinion, the arguments of learned Advocate Ms. Haidari that the case may fall under Section 324 of I.P.C. cannot be accepted. As such, the conviction of appellant for the offence punishable under Section 307 of I.P.C. cannot be disturbed. However, as far as the sentence is concerned, the learned counsel has brought to my notice that the incident had occurred on 28th January, 1987. The appellant was released on bail on 27th February, 1987. He was taken into custody on 11th February, 1998, during the pendency of sessions trial. It appears that he was ordered to be released on bail by this Court and he was physically released from the prison on 30th August, 1998. As such, he has remained in custody for about 8 months. The learned counsel has submitted that considering the fact that judgment is being given after about 27 years from the date of incident, this court may not send the appellant again to the prison. It is submitted that the appellant was about 30 years of age on the date of incident and that now, he might be about 57 years old. Ms. Haidari has submitted that this court may consider that it may not be appropriate to send the appellant to prison after a period of 27 years. 11. It is submitted that the appellant was about 30 years of age on the date of incident and that now, he might be about 57 years old. Ms. Haidari has submitted that this court may consider that it may not be appropriate to send the appellant to prison after a period of 27 years. 11. In ordinary course, I would not have considered to reduce the sentence keeping in view the nature of assault and injuries sustained by PW-2. However, I find substance in the arguments advance by learned counsel Ms. Haidari that the lapse of 27 years period can be considered for not imposing a severe sentence. In my considered opinion, ends of justice will be served if the appellant is directed to undergo imprisonment for the period already undergone by him. Hence, I pass the following order. 12. The appeal is partly allowed. The judgment of learned Trial Court and order of conviction for the offence punishable under Section 307 of I.P.C. is maintained. However, the sentence part is modified and it is directed that the appellant shall undergo rigorous imprisonment for the period already undergone by him and shall pay fine of Rs.1500/-. The fine amount of Rs.1500/-paid by the appellant shall be given to the PW-2 Trilochan Kedarnath Dubey by way of compensation. Appeal stands disposed of accordingly." 13. The fee of learned Advocate Ms. Haidari (appointed) is quantified at Rs.4000/- (Rupees Four Thousand).