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2019 DIGILAW 18 (BOM)

Sy. Azhar Sy. Kalandar v. State of Maharashtra

2019-01-04

V.M.DESHPANDE

body2019
JUDGMENT : 1. These two appeals are taken up for final hearing and they are disposed of by this common judgment. These two appeals arise out of judgment and order of conviction passed by learned Additional Sessions Judge, Washim in Sessions Case No.10/2017 on 23.02.2018. By the said judgment and order of conviction, the appellants in these two appeals are convicted for an offence punishable under Section 307 of the Indian Penal Code and directed to suffer the rigorous imprisonment for 10 years by each of them and to pay a fine of Rs.10,000/-to each of them with default clause of sufferance of three months rigorous imprisonment by each of them. 2. Criminal Appeal No.243/2018 is filed by original accused no.1-Syed Azhar Syed Kalandar. Criminal Appeal No. 136/2018 is filed by accused no.2-Mohd. Lukman Mohd. Shaikh Irfan and accused no.3Sk. Rashid Sk. Gani. In the present judgment, they will be referred by their original positions. 3. These three appeals are argued by Mr. A.S. Deshpande with Mr. S.D. Chande, Advocates. The State is represented by Mr. M.K. Pathan, learned A.P.P. for the State. 4. Gajanan Kute (PW6) lodged his oral report Exh.-49 with Police Station, Ansing on 11.05.2016. The FIR was in respect of assault made by accused no.1 Syed Azhar Syed Kalandar on Chintaman Dange (PW7) the injured. As per the oral report, when Sandal procession of Mastan Shah Baba was taken out in village Ansing and when that procession reached near Gandhi square, there was a commotion in the procession. Some persons were approaching from Nagnath Temple and in order to prevent them from reaching to Gandhi Square, the first informant, injured Chintaman and other were taking steps. At that time, two unknown persons and accused no.1 came there and gave a knife blow on the abdomen of the injured. The report was disclosing commission of cognizable offence. Therefore, crime was registered vide Crime No.80/2016 with Police Station, Ansing for an offence punishable under Section 307 of IPC. 5. Case diary of Crime No.80/2016 was entrusted to Subhash Bajare (PW12) a Police Sub Inspector. He executed spot panchanama Exh.-37 in presence of pancha witness Ghanshyam Tahkare (PW3). He also seized clothes of injured under seizure panchanama Exh.-38 in his presence. He also arrested accused no.3-Shaikh Rashid under arrest panchanama Exh.-78. Thereafter, investigation was carried by Yogita Bharadwaj (PW10). 6. Case diary of Crime No.80/2016 was entrusted to Subhash Bajare (PW12) a Police Sub Inspector. He executed spot panchanama Exh.-37 in presence of pancha witness Ghanshyam Tahkare (PW3). He also seized clothes of injured under seizure panchanama Exh.-38 in his presence. He also arrested accused no.3-Shaikh Rashid under arrest panchanama Exh.-78. Thereafter, investigation was carried by Yogita Bharadwaj (PW10). 6. Yogita (PW10) arrested accused no.1 and accused no.2, their arrest panchanamas are at Exh.-67 & 68. She also seized clothes of these accused under seizure panchanamas Exh.-31 and Exh.-41, in presence of Chandrasen Ingole (PW2) and in presence of pancha witness Vinod Dudhad (PW4). 7. During investigation, accused no.1 gave his memorandum statement in presence of Vinod Dudhad (PW4). By the said memorandum statement, accused no.1 agreed to show the place where he concealed the weapon. Admissible portion of memorandum statement recorded under Section 27 of the Indian Evidence Act is at Exh.-40. Police party led by accused no.1 reached to his house and from an almira inside the house, accused no.1 took out the knife. Recovery panchanama is at Exh.-41. The investigating officer also sent requisition memo to the District Medical officer, Washim along with the weapon in sealed condition and asked his opinion whether the injury caused on the abdomen of the injured is possible by it. The said requisition is at Exh.-69. Report of the Medical Officer is at Exh.-70. Perusal of Exh.-70 shows that after breaking open the seal, the weapon was taken out by the doctor and thereafter gave opinion that the injury is possible by the said knife. He then resealed the same and sent to the investigating officer. The investigating officer, after completion of other usual investigation filed the charge-sheet in the Court of law. 8. The jurisdictional Magistrate in whose Court the final report was presented, found that the offence is exclusively triable by Court of Sessions. Therefore, the case was committed to the Court of Sessions. After committal, the case was registered as Sessions Case No.10/2017. The learned Additional Sessions Judge, Washim framed the charge against all three accused for an offence punishable under Section 307 of the IPC read with Section 34 of the IPC. All the accused abjured their guilt and claimed for their trial. After committal, the case was registered as Sessions Case No.10/2017. The learned Additional Sessions Judge, Washim framed the charge against all three accused for an offence punishable under Section 307 of the IPC read with Section 34 of the IPC. All the accused abjured their guilt and claimed for their trial. In order to bring home the guilt, the prosecution has examined in all 14 witnesses and also relied upon various documents proved during the course of trial. After full fledge trial, the Court below passed the impugned judgment. Hence, this appeal. 9. It is the submission of the learned counsel for the appellants that they are falsely implicated in the crime. It is their submission that due to prior enmity between accused no.1-Syed Azhar and victim Chintaman, he is being falsely implicated. It is also submission of learned counsel for the appellant that on the day of the incident, in fact, there was a riotous situation in which the people belonging to both Hindu and Muslim community threw stones against each other and accused no.2-Mohd. Lukman has lodged FIR against the injured and crime is registered vide Crime No.81/2016. Similarly, on the basis of the complaint lodged by Head Constable Prakash, crime is registered as Crime No.77/2016 against 57 persons and at that time, Chintaman is also one of the accused in the said crime. Therefore, according to the submission of the learned counsel for the appellant, accused nos.2 and 3 are falsely roped in only because a crime is registered against injured Chintaman. The learned counsel therefore submitted that both the appeals are required to be allowed and accused no.1, who is in jail, is to be released forthwith. Per contra, learned A.P.P. would submit that the evidence of injured Chintaman (PW7) is cogent and it inspires confidence. He also submitted that there is a corroboration to the evidence of the injured in the evidence of Gajanan (PW6), the first informant, who also was present on the spot of incident and he deposed that accused no.1 gave knife blow. He submitted that merely because the names of accused nos. 2 and 3 are not appearing in the FIR that is not sufficient to disbelieve the testimony of injured Chintaman that he was caught hold by accused nos. 2 and 3 and thereafter accused no.1 gave knife blow. He submitted that merely because the names of accused nos. 2 and 3 are not appearing in the FIR that is not sufficient to disbelieve the testimony of injured Chintaman that he was caught hold by accused nos. 2 and 3 and thereafter accused no.1 gave knife blow. He therefore submitted that Court below has correctly convicted accused nos.2 and 3 with the aid of Section 34 of the IPC. 10. After hearing both the learned counsel, following are the questions that fall for my determination. (i) Whether conviction of accused no.1 for an offence under Section 307 recorded by the Court below is justified? (ii) Whether the Court below was right in convicting accused nos. 2 and 3 with the aid of Section 34 of the IPC? Since both the points are interlinked with each other, in order to avoid repetition, entire evidence of the prosecution is discussed simultaneously for answering the aforesaid two points. 11. It appears from the record that every year Sandal procession in the honour of Mastan Shah Baba Dargah used to take place at village Ansing. The said procession is attended not only by the villagers of Ansing but by the populace of adjoining villages also. 12. The date of incident is 11.05.2016. On the said day, yearly procession of Sandal was taken out. Many persons were participants of the same. It started at 2.00 p.m. In between 7.00 to 7.30 p.m. said procession reached near Gandhi Chowk, Ansing. 13. As per the FIR Exh.49, the procession consisted of persons from Muslim community. At that time, some boys from other community were coming to Gandhi Chowk from Nagnath Mandir in order to prevent them. First informant Gajanan, injured Chintaman and others were trying to restrain them. At that time, as per the FIR that there was some kind of commotion and the injured was assaulted by accused no.1Syed Azhar Syed Kalandar by means of knife. 14. The FIR is lodged on 11.05.2016 itself. Learned counsel for the appellant submitted that the crime is registered on 12.05.2016 and therefore there is a delay. According to him, the delay is of 8 hours. Exh.59 clearly shows that the first informant reached to the Police Station on 11.05.2016 itself and has disclosed commission of the offence. 14. The FIR is lodged on 11.05.2016 itself. Learned counsel for the appellant submitted that the crime is registered on 12.05.2016 and therefore there is a delay. According to him, the delay is of 8 hours. Exh.59 clearly shows that the first informant reached to the Police Station on 11.05.2016 itself and has disclosed commission of the offence. Therefore, if there is a lapse on the part of police machinery to register the crime after 8 hours, in my view, the complainant cannot be blamed and that cannot be a reason for rejecting the entire prosecution case. 15. Prompt lodging of the FIR is one of the indication that the prosecution case is not actuated with any mala fides especially when the FIR specifically discloses name of culprit and the overt act done on his part. In the present case, it is specifically reported by Gajanan Kute (PW6) that accused no.1-Syed Azhar gave knife blow on the abdomen of the injured Chintaman. Though there is a reference in the FIR that he was accompanied by two other persons whose names he was not knowing, the FIR is conspicuously silent about the role played and/or overt act on the part of those two unknown persons. During trial, Gajanan (PW6) gave a specific admission that accused no.3-Shaikh Rashid was known to him by his name whereas accused no.2-Mohd. Lukman was known to him by face. Though accused no.3-Shaikh Rashid was known by his name, first informant did not disclose his name in the oral report that he was accompanying accused no.1Syed Azhar. Test identification parade was not conducted during the course of investigation to ascertain identity of two unknown persons accompanying accused no.1 as mentioned by the first informant. Though, the test identification parade is never a substantive piece of evidence, it is always useful for the investigating officer as to whether the investigation is on correct lines. Identification of the accused during the trial in the Court of law is substantive piece of evidence. In the present case, if evidence of Gajanan Kute is appreciated in its correct perspective then it would reveal that even during the course of trial, he failed to identify accused nos. 2 and 3 as the persons who were accompanying accused no.1. His evidence shows that accused nos.2 and 3 rushed on the person of Chintaman (injured) and those three had a scuffle. 2 and 3 as the persons who were accompanying accused no.1. His evidence shows that accused nos.2 and 3 rushed on the person of Chintaman (injured) and those three had a scuffle. This particular evidence is not corroborated at all. On the contrary, in the cross-examination, Chintaman, the injured has stated that there was no scuffle in between him and accused nos. 2 and 3. 16. Presence of accused nos.2 and 3 is brought on the scene by injured Chintaman himself. According to the deposition of Chintaman, he attributed role against accused nos. 2 and 3 that they caught hold of his hands and thereafter accused no.1 gave knife blow. If the evidence of Chintaman (PW7), the injured, is scanned microscopically then it is clear that Gajanan, the first informant was standing by his side just 7-8 ft away. If that be so, it is really unthinkable and indigestible that though Gajanan was knowing name of Shaikh Rashid, he will not attribute any role as stated by the injured Chintaman. Further, it is brought on record that two crimes apart from crime in question, were registered with Police Station, Ansing on the very same day i.e. Crime Nos. 79 and 81/2016. In both these crimes, Chintaman the injured is one of the accused. Crime No. 81 is registered on the basis of the report lodged by Shaikh Lukman accused no.2. Statement of injured was recorded on 23.05.2016. There is no positive evidence available on record to show that the investigating officer was unable to record statement of the injured prior to the said date. In view of the fact that the names of accused nos.; 2 and 3 were not disclosed in the FIR, which was promptly filed. Not only that, no specific role was ascribed in the FIR even against two unknown persons and when this Court has found that it would be difficult to accept the version of Chintaman about the role attributed by him against accused nos. 2 and 3 especially when his version is not corroborated by Gajanan, who was standing 78 ft. away from him, in my view, presence of accused nos. 2 and 3 itself becomes doubtful. 17. After injury was inflicted, the injured was firstly taken to the hospital of Dr. Markad by persons including Bablu alias Ram Jadhav (PW14). Evidence of Bablu shows that Chintaman was having blood oozing injury and Dr. away from him, in my view, presence of accused nos. 2 and 3 itself becomes doubtful. 17. After injury was inflicted, the injured was firstly taken to the hospital of Dr. Markad by persons including Bablu alias Ram Jadhav (PW14). Evidence of Bablu shows that Chintaman was having blood oozing injury and Dr. Markad referred him to Washim. Thereafter, he was taken at Washim. At Washim, Dr.Prasad Hirwe (PW8) examined Chintaman at Civil Hospital. Evidence of Dr. Hiwre shows that he noticed following injury: (i) Stab wound on abdomen 5 X 3 cm. Injury certificate issued by Dr. Hirwe is at Exh.59. According to Dr. Hirwe, nature of the injury was grievous and it was sufficient to cause death of the patient. When Chintaman was brought for treatment, Dr. Hirwe provided him I.V. fluid, antibiotics and also dressed up the wound. He noticed that there was heavy loss of blood and patient was drowsy. He also found that patient was in semi conscious state. He, therefore, referred that patient for further treatment at Akola. At Akola, Arvind Adhe (PW11) was medical officer of Ozone Hospital. On 11.05.2016 injured was admitted in the said hospital at 10.30 p.m. Dr. Adhe notices stab wound on his stomach and therefore he was required to perform operation on him. He found that Chintaman had sustained stab wound on stomach and blood was accumulated. Injured Chintaman was indoor patient till 05.06.2016. Exh.74 is the opinion given by Dr. Adhe in response to the requisition. Vide Exh.74, Dr. Ade pointed out that due to sharp weapon, the injured was assaulted on his abdomen resulting into injury to his intestine and blood was accumulated in the stomach. The patient was required to be operated upon. It is also opinion of the Doctor that had there not been urgent and timely medical assistance, the patient would have lost his life. The opinion Exh.74, which has remained unchallenged shows that the Doctor was required to perform colostomy on Chintaman. 18. The prosecution has also examined, Dr. Nilesh Korde (PW13) who has proved Discharge Card, Exh.-84. Perusal of Exh.-84 shows that on 11.05.2016 Exploratory Laprotomy was performed under general anesthesia. The finding is noted at Exh.84, which is as under: Hemoperitoneum. Small bowel was transected almost whole circumference. Transverse colonic perforation (stab) 2 X 1 cm. Rest of the abdomen viscera normal. Nilesh Korde (PW13) who has proved Discharge Card, Exh.-84. Perusal of Exh.-84 shows that on 11.05.2016 Exploratory Laprotomy was performed under general anesthesia. The finding is noted at Exh.84, which is as under: Hemoperitoneum. Small bowel was transected almost whole circumference. Transverse colonic perforation (stab) 2 X 1 cm. Rest of the abdomen viscera normal. Colonic perforation closed in 2 layers with 3.0 mersilk interrupted suture. Small bowel extravasation closed with Lt. Side loop colostomy. Through wash given.” From the proved medical papers, in the light of evidence of three doctors, there cannot be any doubt in anyone's mind that due to sharp cutting weapon, injury was caused on the abdomen of Chintaman (PW7) and it was not only grievous in nature but was life threatening and only with the grace of God and timely medical assistance, precious life of Chintaman was saved. 19. According to the prosecution, author of the injury on the abdomen is accused no.1 Syed Azhar. The FIR specifically attributes the overt act done by accused no.1. The injured himself has also stated on oath that he was assaulted by accused no.1 by means of knife. The evidence of injured regarding authorship of injured is not seriously challenged in his cross-examination except by a suggestion which, in my view, is like a lame duck that somebody has given knife blow. However, the said suggestion was duly denied by the injured. 20. According to the learned counsel, accused no.1 is falsely implicated because of the old enmity. Enmity is a double edged weapon. It provides motive for the accused. At the same time, it can be used by the defence that the accused is falsely implicated. However, if evidence of the injured inspires confidence and is corroborated by the attending circumstances, the Court can reach to the conclusion that there was a motive and the accused was just waiting for his chance to take revenge. It appears that on the day of the incident, there was Sandal procession resulting into some type of commotion and, in my view, that has given a chance to the accused no.1 who was waiting for settling his score with the injured on account of his previous enmity. 21. There is a corroboration in the prosecution case in the nature of recovery of weapon at the behest of accused no.1-Syed Azhar. 21. There is a corroboration in the prosecution case in the nature of recovery of weapon at the behest of accused no.1-Syed Azhar. In presence of Vinod Dudhar (PW4) memorandum statement of accused no.1 was recorded by investigating officer wherein he agreed to show the place where he has concealed the weapon. Evidence of Vinod (PW4) has remained unshaken on the aspect that in his presence the knife was recovered from an almirah inside the house of accused no.1-Syed Azhar. Exh.75 is the recovery panchanama, which reveals that the weapon was sealed on the spot itself. At the time of seizure of the weapon, it was having blood stains. In a sealed condition, it was given to the medical officer for his opinion and in a sealed condition it was reported to the investigating officer and in a sealed condition, it reached to the office of the chemical analyser. The chemical analyer's report is at Exh.44. It shows that human blood was noticed on the clothes of the accused no.1 and on the weapon. Learned counsel for the appellant submitted that the said evidence was not brought to the notice of accused persons. Perusal of the judgment impugned shows that the said incriminating material was not at all used by Court below for recording of conviction. 22. In view of the consistent evidence of Gajanan (PW6), the first informant and Chintaman (PW7), the injured there is no doubt in my mind that the prosecution has proved the authorship of the injured to the accused no.1-Syed Azhar. On reappreciation of the entire prosecution case, independently also, I record a finding that it is accused no.1Syed Azhar who dealt with a knife blow on the abdomen of Chintaman (PW7) resulting into the injury. Therefore, he was rightly convicted by the Court below for an offence punishable under Section 307 of the IPC. 23. According to the learned counsel for the appellants, the quantum of punishment is on higher side. 24. Section 307 of the IPC, though has not quantified the minimum sentence, it states that punishment can be up to life. Therefore, the Legislature has given a discretion to the Court to impose the duration of sentence commensurate to the injury suffered by the surviving victim. 24. Section 307 of the IPC, though has not quantified the minimum sentence, it states that punishment can be up to life. Therefore, the Legislature has given a discretion to the Court to impose the duration of sentence commensurate to the injury suffered by the surviving victim. In the present case, it is seen that there was enormous loss of blood due to the injury, the injured was required to be operated upon and he was required to be an indoor patient from 11.05.2016 till 05.06.2016 and the nature of injury as per the medical evidence was not only grievous but was life threatening also. Therefore, I refrain myself from disturbing the quantum of sentence imposed upon accused no.1-Syed Azhar. In fact, in my view, the Court below has rightly punished accused no.1Syed Azhar for rigorous imprisonment for 10 years. 25. Insofar as accused nos. 2 and 3 are concerned, they are convicted with the aid of Section 34 of the IPC. There is nothing available on record to show that accused nos.2 and 3 were knowing that accused no.1-Syed Azhar was armed with dangerous weapon, knife. In absence of this evidence, it is really harsh if they are convicted by taking the aid of Section 34. In addition to that, as observed in the preceding paragraph of the judgment, their very presence at the spot itself is doubtful. Therefore, in my view, conviction of accused nos. 2 and 3 with the aid of Section 34 cannot be sustained in the eye of law. 26. On reappreciation of entire prosecution case, I pass the following order. ORDER (i) Criminal Appeal No. 243/2018 filed by accused no.1-Syed Azhar Syed Kalandar is dismissed. Accused no.1 is in jail and he shall serve out the remainder of the sentence. (ii) Criminal Appeal No.136/2018 is hereby allowed. (iii) Accused no.2-Mohd. Lukman Mohd. Shaikh Irfan and accused no.3-Shaikh Rashid Shaikh Gani are acquitted of the offence punishable under Section 307 read with Section 34 of the Indian Penal Code. (iv) Bail bonds of these appellants stand cancelled. Fine amount deposited by these two appellants be refunded to them.