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2014 DIGILAW 1638 (BOM)

Munna Mohammad Shaikh v. State of Maharashtra

2014-07-25

P.D.KODE

body2014
Judgment The appeal is directed against the judgment and order dated 25th March, 2010 delivered by the learned 5th Ad-hoc Additional Sessions Judge, Sewree, Mumbai in Sessions Case No. 569 of 2009 convicting the appellant for commission of offence punishable under Section 326 of Indian Penal Code and sentencing him to suffer rigorous imprisonment for Seven years and to pay fine of Rs. 1,000/- and in default of payment of fine, to suffer simple imprisonment for three months. 2. The said prosecution emerged out of the charge-sheet filed by PW-9 PI. Ajay Krushanaji Lonare as a result of investigation in Crime No. 180 of 2009 of Nagpada police station registered by PW-8 PSI. Dhananjay Yashwant Fadatare on the basis of report (Exh-28) submitted by police head constable PW-4 Sandip Mariba Wankhede regarding the incident of quarrel reported to him by one person approaching at Mumbai Central police chowky on 18th June, 2009 at about 1.15 p.m. According to the prosecution said person has approached PW-4 whilst on duty at the said police chowky and informed about the quarrel which was ensuing on the footpath near main gate of Mumbai Central railway station. PW-4 rushed at the said place along with other police officials and found that victim Bangali alias Vinod Indrapradan Aaliyaput was lying at said place with intestine oozing out of stomach. The hawkers present at said place then having told him that the assailant was fleeing away inside the railway station from the entrance gate, Police Naik PW-6 Anil Ravaji Ghag and PN No. 24996 accompanying PW-4 and apprehended the appellant whose cloths were then found stained with blood. On inquiry, he has disclosed his name as Munna Shaikh, aged 28 years. Thereafter, PW-4 sent victim Bangali to Nair hospital for medical treatment. PW-7 Dr. Gautam Karbhari Gangurde treated said Bangali at said hospital. 3. PW-4 thereafter narrating such events occurred, lodged F.I.R. (Exh-28). PW-8 then on duty at Nagpada police station, upon the said report, registered a crime No. 180 of 2009 against the appellant for commission of offence under Section 307 of Indian Penal Code. PW-7 Dr. Gautam Karbhari Gangurde treated said Bangali at said hospital. 3. PW-4 thereafter narrating such events occurred, lodged F.I.R. (Exh-28). PW-8 then on duty at Nagpada police station, upon the said report, registered a crime No. 180 of 2009 against the appellant for commission of offence under Section 307 of Indian Penal Code. PW-8 carried out the initial investigation of said crime which included drawing of spot panchanama (Exh-8), recording of statement of injured, seizure of weapon of offence i.e. sickle as a sequel to statement leading to discovery of it made by appellant by drawing memorandum and discovery panchanama (Exh-29) from a place in the garden to which the appellant had led police panch witnesses PW-5 Mohammed Manju Shaikh and another, seizure of blood stained clothes (Article-2) from the person of appellant under panchanama (Exh-30). 4. The further investigation in the said crime was carried out by PW-9 which included recording of statement of witnesses, recording of statement of injured, sending seized muddemal articles to Chemical Analyzer, adding offence under Section 302 of Indian Penal Code to the crime registered, after occurring of death of injured at Nair hospital on 4th July, 2009, collecting of postmortem notes of the postmortem examination on the deceased carried out by PW-2 Dr. Vinod Choudhari at the said hospital. PW-9 at the conclusion of the investigation submitted charge-sheet against the appellant in the Court of learned Metropolitan Magistrate, 25th Court, Mazgaon for the offence of murder and the said Court committed the case registered thereon involving said offence triable by the Court of Session, to the said Court. 5. Appellant pleaded not guilty to charge (Exh-3) of offence of murder framed against him at the Court of Session and claimed to be tried. 6. The prosecution at trial examined above referred seven witnesses and additionally eye witnesses PW-1 Ashok Kumar Rakeshpal Singh, a fruit vendor who had witnessed the incident and PW-3 Jitu Dita Patel a collie who had observed the incident since appellant brought sickle and assaulted the deceased. 7. The defence of the appellant was that of total denial and false implication. 8. 7. The defence of the appellant was that of total denial and false implication. 8. The trial Court after hearing both the sides and appreciating evidence adduced came to the conclusion that though the prosecution has not established of the appellant having committed murder of deceased but the prosecution having established that the appellant by assaulting the deceased by means of sickle having committed the offence of voluntarily causing grievous hurt punishable under Section 326 of Indian Penal Code to the victim by dangerous weapon. In consonance with such finding arrived, trial Court acquitted the appellant from the charge of having murdered the deceased but convicted and sentenced him for commission of offence punishable under Section 326 of Indian Penal Code as narrated earlier. 9. Mr. Abhaykumar Apte, learned appointed advocate for the Appellant submitted that the judgment and order of conviction passed by the trial Court convicting and sentencing the appellant for commission of offence under Section 326 of Indian Penal Code was illegal and unsustainable due to being de horse the evidence surfaced on record. He urged that the evidence of PW-2 in terms having established that the deceased succumbed to the death due to damage caused to the victim by Dengue fever suffered by him, the trial Court though rightly acquitted the appellant of the charge of committing murder of deceased due to death having not ensued from an act committed by the appellant, still failed to appreciate the evidence of both the doctors on the record considered in proper perceptive failed to establish the injuries inflicted by the appellant amounted to causing grievous hurt. It is his submission that the injuries sustained by the victim due to assault made by the appellant with sickle were not falling within any of the clauses of Section 320 of Indian Penal Code i.e. a definition of "Grievous Hurt". He submitted that hence trial Court committed serious error in convicting and sentencing the appellant for commission of offence punishable under Section 326 of Indian Penal Code instead of for offence publishable under Section 324 of Indian Penal Code made out by evidence surfaced. He submitted that hence trial Court committed serious error in convicting and sentencing the appellant for commission of offence punishable under Section 326 of Indian Penal Code instead of for offence publishable under Section 324 of Indian Penal Code made out by evidence surfaced. The learned counsel urged that in these circumstances, the appeal be allowed to such extent and the judgment and order of conviction passed by the trial Court, be quashed and set aside and the appellant be convicted and sentenced only for commission of offence under Section 324 of Indian Penal Code made out by evidence on record. 10. Mr. J.P. Yagnik, learned APP for the State on the contrary, submitted that the prosecution by leading a cogent evidence of eye witnesses who had witnessed the incident and the other circumstantial evidence adduced by the prosecution of the police witnesses has clinchingly established that the appellant had assaulted the deceased with sickle and caused him grievous injury. Learned APP urged that both the doctors examined by the prosecution has squarely stated that injuries sustained by the deceased were grievous injuries and injury No.1 pointed out by those doctors was sufficient in ordinary course of nature to cause death of the deceased. Learned APP thus submitted that though the trial Court rightly gave the benefit to the appellant of the charge of committing murder of the deceased since the death having ensued not due to injuries but the ailment of Dengue fever suffered by him was very much justified in convicting the appellant for commission of offence under Section 326 of Indian Penal Code. Learned APP thus contended that there is no worthy reason for interfering with the judgment and order of conviction passed by the trial Court for detail reasons recorded in the judgment. Learned APP prayed for dismissal of the appeal. 11. Thoughtful considerations were given to the submissions advanced by both the sides and record and proceedings of the case, particularly the judgment appealed was carefully considered for ascertaining merits in submissions canvassed. 12. Learned APP prayed for dismissal of the appeal. 11. Thoughtful considerations were given to the submissions advanced by both the sides and record and proceedings of the case, particularly the judgment appealed was carefully considered for ascertaining merits in submissions canvassed. 12. Considering the submissions advanced at the bar and the same being primarily centered about non involvement of the appellant in an incident of assault upon the deceased and or causing him injuries with sickle, but being regarding the offence occurred at the hands of appellant by committing such act, it would not be necessary to discus in detail the evidence adduced by prosecution regarding involvement of appellant in assaulting the victim & causing him the injuries by means of sickle. However, the appeal being directed against the judgment and order passed by the trial Court at a criminal trial makes it necessary to make a brief reference to relevant part of the evidence for appreciating correctness of such finding arrived by trial Court apart from no dispute regarding said aspect is being made by either of parties. 13. From the aforesaid angle now considering the evidence of PW-1 who was working as a fruit vendor near Mumbai Central railway station and PW-3 who was also working as a collie, it can be safely said that by the evidence of either of the witnesses, the prosecution had duly established that the appellant was involved in an incident of assaulting the victim with sickle and during the said assault he has caused bleeding injuries upon the deceased. Such conclusion emerges a careful scrutiny of the evidence of each of the said witness in terms revealed of each of them having given a graphic account of incident which had occurred in their presence and in which the appellant after the quarrel with the deceased had gone and brought the sickle and inflicted two blows on the deceased. The account of an incident as given by each of the said witness apart from being not rendered unbelievable or unacceptable due to any circumstances surfaced during the cross examination, is further more found to be in consonance with the account given by each other. 14. The account of an incident as given by each of the said witness apart from being not rendered unbelievable or unacceptable due to any circumstances surfaced during the cross examination, is further more found to be in consonance with the account given by each other. 14. In addition of the aforesaid, even a cursory glance at the evidence of PW-7 who had treated the victim after he was admitted to Nair hospital and the nature of the injuries he had found on the person of the deceased is also in consonance with the account of incident, given by both the eye witnesses. Similarly to some extent the corroboration to the said evidence is found from evidence of PW-2 who had performed autopsy upon the body of deceased after he passed away. 15. Hardly anything surfaced on record during the cross-examination for non-accepting the evidence given by both the doctors regarding injuries sustained by the deceased. The evidence of both the doctors is consistent with the account of incident given by both eye witnesses. 16. In addition to the aforesaid, other evidence adduced by the prosecution of PW-4 and PW-6 in terms reveals the manner in which after receiving the information about the incident of scuffle from a person who had approached Mumbai Central Police chowky, they had been to the spot and found deceased lying at said place and other hawkers at the place, had informed them about the assailant fleeing inside the railway station and thereafter PW-6 along with other staff having apprehended the appellant and then blood stains being found upon the cloths on person of appellant. Some what similar evidence is also of PW-8. 17. Now considering the short time gap within which said both police witnesses had rushed to the spot and the appellant was apprehended nearby the place of offence and then his shirt was found to be stained with blood also corroborates the evidence of PW-1 and PW-3. The prosecution had also adduced evidence of PW-8 and PW-5 regarding sickle (Article 10) being seized by the police as a sequel to the statement leading to discovery and seizure made by the appellant. The said evidence considered in proper perceptive along with C.A. report duly establishes that said sickle was found stained with blood of the same group as that of the deceased. The said evidence considered in proper perceptive along with C.A. report duly establishes that said sickle was found stained with blood of the same group as that of the deceased. Even the case regarding blood stains found on the clothes of the appellant is not different. Without making any detail dilation about the evidence of each of the aforesaid witnesses or the answers elicited during the cross-examination, it can be safely said after assessing the evidence of each of witness upon settled norms of the appreciation of the evidence that evidence of none of the aforesaid witnesses has been rendered unbelievable by anything elicited during the cross examination. Needless to add that all the said evidence duly corroborates the evidence of eye witnesses referred hereinabove and the same fortifies the finding arrived by the trial Court that during the incident in question, appellant having assaulted the deceased by means of sickle. 18. Now taking up moot question involved whether the trial Court was justified in convicting the appellant of commission of offence under Section 326 of Indian Penal Code on the basis of the evidence of PW-2 and PW-7 as canvased and duly established by the other evidence, it will be necessary to refer the relevant part of both the said witnesses. 19. In the said process, firstly considering the evidence of PW-7 who had an occasion to firstly examine injured and noted the injuries on his person, his evidence reveals then having noticed following three injuries: (1) Incised wound over the left shoulder bond deep 6 cm x 5 cm x 2 cm. (2) Incised wound over 5 cm x 3 cm over the left side of abdominal muscle deep. (3) Incised wound 10 cm x 6 cm over the right side of the abdomen small bowel omentum, outside the abdomen small bowel. 20. PW-7 during his further deposition, deposed that all the said injuries were possible by sharp edged weapon like sickle shown to him. PW-7 further deposed that injury No. 3 out of the aforesaid injuries was sufficient to cause death in the ordinary course of nature. 21. 20. PW-7 during his further deposition, deposed that all the said injuries were possible by sharp edged weapon like sickle shown to him. PW-7 further deposed that injury No. 3 out of the aforesaid injuries was sufficient to cause death in the ordinary course of nature. 21. Now taking up the evidence of PW-2 who had performed autopsy, alike PW-7 he has deposed that having noticed following six injuries on the person of the deceased: (1) A linear sutured wound of size 12 cm was horizontally placed over the upper part of left shoulder just above the left acromion process with 6 sutures intact over anterior part of wound on opening the sutures margins were adherent to each other, brownish coloured. (2) A linear sutured wound of size 11 cm was horizontally placed over the umbilical and right lumbar region. It was 26 cm above the pubic symphisis with 10 sutures intact on opening the sutures margins were adherent to each other, brownish coloured. (3) A linear sutured wound of size 17 cm vertically placed was present over the anterior abdominal wall in umbilical and hypo gastric region in middle and 15 cm above the pubic symphisis with 15 sutures intact, on opening the sutures margins were adherent to each other, brownish coloured. (4) The open wounds of size 1.5 x 1.2 cm peritoneum deep were present in both lumber regions, with clean, cut, regular margins, dark brown coloured and edges were reddish (wounds for the abdominal drains) (5) A linear sutured venesections wound of size 3 cm was present over the right cubital fossae with 4 sutures intact, on opening the sutures, with clean, cut, regular margins, dark brown coloured. (6) A linear sutured venesections wound of size 4 cm was present over the left cubital fossae with 4 sutures, intact, on opening the sutures, with clean, cut regular margins, dark brown coloured. 22. His evidence also depicts in detail about the internal damage noticed by him. PW-2 further deposed of having given provisional cause of death, as due to "Intra cerebral hemorrhage and intrapulmonary hemorrhage due to dengue in a case operated for stab injury of the abdomen." His evidence further reveals that the tissues were preserved for histopathological examination. 23. 22. His evidence also depicts in detail about the internal damage noticed by him. PW-2 further deposed of having given provisional cause of death, as due to "Intra cerebral hemorrhage and intrapulmonary hemorrhage due to dengue in a case operated for stab injury of the abdomen." His evidence further reveals that the tissues were preserved for histopathological examination. 23. PW-2 thereafter gave final cause of death as "Septicemia bronchopneumoria intra cerebral hemorrhage and intrapulmonary hemorrhage due to dengue in a case operated for stab injury of the abdomen." Significantly enough, PW-2 also deposed that injury No. 2 mentioned in column No. 17 of postmortem report (Exh-15) i.e." a linear sutured wound of size 11 cm was horizontally placed over the umbilical and right lumbar region. It was 26 cm above the pubic symphisis with 10 sutures intact on opening sutures margins were adherent to each other brownish coloured" being sufficient in ordinary course of nature to cause death. 24. Now after carefully considering the evidence of both the said doctors, it is crystal clear that death has not ensued due to any of the injuries caused to the deceased. Though it is true that as canvased by learned APP, both doctors have deposed that one of the injury suffered by the deceased was sufficient in ordinary course of nature to cause death, in fact the death has not ensued due to said injuries. Having regard to the same, trial Court rightly acquitted the appellant from the charge of having committing murder of the deceased. However in order to convict the appellant for commission of offence under Section 326 of Indian Penal Code, it would have been necessary for the trial Court to arrive at a conclusion that injury caused to the deceased was a grievous hurt i.e. injury of a nature falling in one of the eight clauses of the definition of "Grievous Hurt" given in Section 320 of Indian Penal Code. 25. Now examining the injuries and particularly injury referred by doctors i.e. injury sustained by the deceased, from the said angle, it is difficult to accept even prima facie that it will fall within any of said clauses. 25. Now examining the injuries and particularly injury referred by doctors i.e. injury sustained by the deceased, from the said angle, it is difficult to accept even prima facie that it will fall within any of said clauses. A frantic effort was made by the learned APP to submit that it will fall under clause 8 of said section due to it being a serious injury sufficient in ordinary course of nature to cause death as deposed by the doctors. 26. Now considering the clause 8, the same runs as under: "Eightly : Any hurt which endangers life or which causes the sufferer to be during the space of twenty days in severe bodily pain, or unable to follow his ordinary pursuits". 27. Admittedly incident in question having occurred on 18th June, 2009 and death of the victim having occurred on 4th July, 2009, there will arise no question of deceased having suffered bodily pain or unable to follow his ordinary pursuits for a period of 20 days and as such the same would never be covered within later part of clause eightly of Section 320 of IPC. 28. Now considering other aspect of the same, falling within earlier part of said clause i.e. "any hurt which endangers life" the evidence of doctor having squarely revealed of deceased having not died due to injuries sustained but due to disease Dengue, makes it difficult to accept that the injuries caused or precisely the injury No. 3 by itself can be said to be injury endangering life as contemplated by said clause. Such conclusion is inevitable in view of the death being not attributed to said injury sustained by the deceased. 29. Now considering the evidence given by the doctors of the said injury being sufficient in ordinary course of nature to cause death, the careful perusal of the evidence of both the doctors do not reveal any reasons being given by either of said expert witness which has led them to arrive at such opinion. It is settled legal position that the evidence of a medical expert would deserve credence only in the event of same being found supported by the reasons for arrival of a particular opinion. It is also well settled that the Court is not bound to accept the opinion of doctors unless and until the same satisfies said test. 30. It is settled legal position that the evidence of a medical expert would deserve credence only in the event of same being found supported by the reasons for arrival of a particular opinion. It is also well settled that the Court is not bound to accept the opinion of doctors unless and until the same satisfies said test. 30. Having regard to it and considering the peculiar nature of the evidence of both the witnesses i.e. evidence of experts, merely because their evidence had not been specifically challenged by way of cross examination would not be a good ground for accepting it as canvased by the learned A.P.P. 31. In the aforesaid premises, merely on the basis of such opinion expressed by the said doctors which is not at all found supported by any cogent reasoning for arriving at such opinion and furthermore the death having not ensued due to any of injuries sustained, makes it earnestly difficult to accept the finding arrived by the trial Court that the appellant, an author of the said injuries thereby had caused grievous hurt to the deceased. Needless to add the same makes finding to such effect arrived by the trial Court vulnerable. Resultantly, the said finding arrived and sentencing the appellant for commission of such offence by the trial Court will be required to be quashed and set aside. 32. The aforesaid reasoning is also found fortified by the decision given in case of "Mahindar Singh vs. Emperor, 1925 LAHORE 297(1)". The perusal of the said decision reveals that in said case victim sustaining injuries due to assault committed by the appellant on the said victim by gandasa, having died due to tetanus prior to 20 days of occurrence of incident in question in said case the Court concluded that considering the nature of injuries sustained by deceased, he can not be convicted for commission of offence punishable under Section 326 of Indian Penal Code and was liable to be convicted and sentenced only for the commission of offence under Section 324 of the Indian Penal Code. 33. 33. However, the prosecution evidence having undoubtfully established the appellant on the relevant day having assaulted the deceased by means of sickle and the assault effected having resulted the deceased sustaining injuries, though the same having not resulted causing his death, would warrant holding the appellant guilty for causing hurt to the deceased by means of dangerous weapon and as such he will be required to be convicted for commission of offence under Section 324 of Indian Penal Code. Similarly, considering the result ensued out of an act committed by him, the nature of the weapon used, the reason for assault and the parts upon which he has attacked the victim would warrant sentencing him to suffer rigorous imprisonment for three years and to pay fine of Rs. 3,000/- and in default of payment of fine to suffer simple imprisonment for six months. 34. In the premises aforesaid, the appeal is partly allowed. The relevant part of the judgment and order passed by the trial Court convicting the appellant for commission of offence under Section 326 of Indian Penal Code and sentencing the appellant to suffer rigorous imprisonment for seven years and to pay fine of Rs. 1,000/- and in default of payment of fine to suffer simple imprisonment for three months awarded to him is hereby quashed and set aside. 35. However the appellant is found guilty for commission of offence punishable under Section 324 of Indian Penal Code and he is sentenced to suffer rigorous imprisonment for three years and to pay fine of Rs. 3,000/- and in default of payment of fine to suffer simple imprisonment for six months. 36. The appellant entitled for set off for the period of detention undergone in the custody in accordance with the law. 37. The order passed by the trial Court regarding disposal of muddemal property, stands unmodified. 38. The learned appointed advocate for the appellant, for valuable services rendered, entitled for remuneration as per the rules made in the said regard. 39. Copy of the judgment and order be sent to the appellant who is in custody, through the Superintendent of the Prison in which he is presently lodged. Appeal partly allowed.