Research › Search › Judgment

Bombay High Court · body

2019 DIGILAW 238 (BOM)

Abdul Shakil Abdul Rashid v. State Of Maharashtra

2019-01-28

V.M.DESHPANDE

body2019
JUDGMENT V. M. Deshpande, J. (Oral) - By the present appeal, the appellants are challenging the judgment and order of conviction passed by the learned Adhoc Additional Sessions Judge, Akola dated 06.5.2006 in Sessions Case No. 82/2001, whereby the appellants are convicted for the offences punishable under Sections 325 and 323 read with Section 34 of the Indian Penal Code and they are directed to suffer rigorous imprisonment for two years and to pay a fine of Rs. 500/by each of them. The Court below has directed that if the amount is deposited, then out of it a sum of Rs. 1,000/be given to PW1 Nasirbeg as compensation. 2. I have heard Mr. O. A. Ghare, the learned counsel for the appellants and Mr. S. M. Ghodeswar, the learned Additional Public Prosecutor for the respondent/State in extenso. With their able assistance, I have gone through the record and proceedings. 3. Initially, the learned Judge of the Court below had framed a Charge for the offence punishable under Section 307 read with Section 34 of the Indian penal Code for assaulting PW1 Nazirbeg on his head and also framed a charge for the offence punishable under Section 323 read with Section 34 of the Indian Penal Code for assaulting on PW6 Nasifbeg. Crime No.101 of 2000 was registered with Police Station, Mana against the appellants and it was investigated by PW7 PSI Ganesh Bhavsar. The first information report was registered by PW3 Dayalsingh Kochar, who was Head Constable there at the relevant time. On the basis of the oral report (Exh.54) lodged by PW1 Nasir beg, PW7 PSI Bhavsar conducted spot panchanama in presence of PW2 Azarbeg. It is at Exh.58. He arrested accused no.3 Abdul Khalil and accused no.4 Abdul Nasim on 21.10.2000, whereas accused no.2 Abdul Naim was arrested on 22.10.2000. In presence of panch PW2 Azarbeg, these accused persons gave their memorandum statements, whereby they agreed to show where they have concealed weapon sticks. Their memorandum statements are at Exh.63A, 64A and 65A. Accordingly the Investigating Officer seized the sticks from their respective houses and the recovery panchanamas are at Exhs.63B, 64B and 65B. The clothes of the accused were also seized. The Investigating Officer arrested appellant no.1 Abdul Shakil on 25.10.2000. He also gave his memorandum statement in presence of pancha PW2 Azarbeg. Their memorandum statements are at Exh.63A, 64A and 65A. Accordingly the Investigating Officer seized the sticks from their respective houses and the recovery panchanamas are at Exhs.63B, 64B and 65B. The clothes of the accused were also seized. The Investigating Officer arrested appellant no.1 Abdul Shakil on 25.10.2000. He also gave his memorandum statement in presence of pancha PW2 Azarbeg. The said is at Exh.59A and Exh.59B is the recovery panchanama, whereby Axe was seized from the place shown by appellant no.1 Abdul Shakil. After completion of the investigation, the Charge sheet was filed before the Court of law. 4. Though, the Charge was framed against all the appellants for the offence punishable under Section 307 read with Section 34 of the Indian Penal Code for assaulting Nasirbeg, all the accused are acquitted by the Court below from the said charge. However, the State did not prefer any appeal against the said acquittal. 5. PW5 Dnyaneshwar Pawar, an independent eyewitness has turned hostile along with PW4 Mohd. Jabir Mohd. Roshan, the another panch. 6. It appears that the incident of assault has occurred due to grazing of cattle of the appellants in the agricultural field of injured person. Prelude to the incident in question is the incident dated 19.10.2000. On the said day, when PW6 Nasifbeg obstructed the appellants from grazing their cattle in his agricultural field, the said prosecution witness was threatened by the appellants. Therefore, the incident of threatening was reported to Police Station, Kurum vide Exh.69. 7. The incident in question has occurred on 21.10.2000. According to PW1 Nasirbeg and PW6 Nasifbeg, PW1 Nasirbeg was assaulted by appellant no.1 Abdul Shakil by means of Pharsha (Axe) and at that time appellant no.1 Abdul Naim caught him from backside. Appellant no.3 - Abdul Khalil and appellant no.4 Abdul Nasim gave stick blows on his hands. According to these two prosecution witnesses, at that time when PW6 Nasifbeg tried to intervene, he was also assaulted. The prosecution has examined Dr. Rahman Khan Kale Khan (PW8), who along with Dr. Abhay Patil performed operation on forearms and right knee of PW1 Nasirbeg, as per his evidence. Though, the Discharge Card is filed on record at Exh.82, the X-ray plates are not brought on record by the prosecution. Though, PW1 Nasirbeg, the injured, claims that he was assaulted on his head by deadly weapon Axe, PW8 Dr. Abhay Patil performed operation on forearms and right knee of PW1 Nasirbeg, as per his evidence. Though, the Discharge Card is filed on record at Exh.82, the X-ray plates are not brought on record by the prosecution. Though, PW1 Nasirbeg, the injured, claims that he was assaulted on his head by deadly weapon Axe, PW8 Dr. Rahman Khan when examined him could not notice any head injury. The discharge Card (Exh.82) shows that the injured was an indoor patient from 23.10.2000 till 10.11.2000. In absence of X-ray plates on record, in my view, the fracture injuries are not duly proved. 8. The appellants were charged for the offence punishable under Section 323 of the Indian Penal Code for assaulting and causing injuries to PW6 Nasifbeg, however, his injury report is not brought on record. Therefore, the Court below, in my view, has committed an error in convicting all the appellants for the offence punishable under Section 323 read with Section 34 of the Indian Penal Code. 9. Though, the fractures are not strictly proved in absence of X-ray plates on record, however, injured Nasirbeg was an indoor patient for about 17 days. It is to be noted here that PW8 Dr. Khan has admitted that accused no.1 Abdul Shakil was also an indoor patient and his Bed Head Ticket is at Exh.83. It shows that he was admitted in the hospital from 21.10.2000 and was discharged on 25.10.2000. Thus, accused no.1 was also an indoor patient for Four days. The said fact is suggestive of the scuffle between the accused persons and PW1 Nasirbeg and PW6 Nasifbeg on account of issue of grazing the cattle. 10. The incident in question has occurred on 21.10.2000. It appears that thereafter no untoward incident has occurred in between the appellants and the injured persons. The impugned judgment shows that appellant no.1 Abdul Shakil was in jail for about Two months and the other appellants were also in jail prior to they were released on bail on respective dates, which are mentioned in the impugned judgment. 11. Looking to the fact that the incident has occurred in the year 2000 and the nature of injuries are not fully established, in stead of directing the appellant to be in jail for about two years, the interest of justice demands to pass the following order : ORDER 1. 11. Looking to the fact that the incident has occurred in the year 2000 and the nature of injuries are not fully established, in stead of directing the appellant to be in jail for about two years, the interest of justice demands to pass the following order : ORDER 1. All the appellants are acquitted of the offence punishable under Section 323 read with Section 34 of the Indian Penal Code. 2. The appellants are convicted for the offence punishable under Section 325 read with Section 34 of the Indian Penal Code as directed by the learned Adhoc Additional Sessions Judge, Akola in the judgment and order dated 06.5.2006 in Sessions Case No. 82/2001, however, their jail period shall be the period which they have already undergone in jail, in stead of rigorous imprisonment for Two years as directed by the Court below. 3. Insofar as fine amount is concerned, the appellants are directed to pay fine of Rs. 1,500/by each appellant within a period of Four weeks from today, in stead of Rs. 500/as directed by the Court below. The fine amount of Rs. 1,500/shall be in addition to the amount of fine of Rs. 500/which the appellants have already deposited. 4. If within a period of four weeks the amount of Rs. 1,500/by each appellant is not deposited before the Sessions Court, Akola, then the order of jail sentence of two years as imposed by the Court below, will revive. 5. With this, the criminal appeal is partly allowed and disposed of.