Bombay High Court
Sk. Salim Shaikh Chotu (In Jail) vs The State Of Mah. Thr. P.S.O., P.S. ... on 11 October, 2010
Author: Prasanna B. Varale
Bench: Prasanna B. Varale
1
IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
NAGPUR BENCH, NAGPUR.
CRIMINAL APPEAL NO. 178 OF 2010.
Sk. Salim Shaikh Chotu,
aged about 45 years,
r/o Kasadpura, Achalpur,
Tq.Achalpur, District Amravati.
(Presently at Central Jail, Amravati). ... APPELLANT
VERSUS
The State of Maharashtra, through
Police Station Officer, Police Station,
Paratwada, District Amravati.
ig ... RESPONDENT
....
Shri J.B. Kasat, Advocate for the appellant.
Shri S.M. Bhagde, Additional Public Prosecutor for the respondent.
....
CORAM : PRASANNA B. VARALE, J.
DATED : 11TH OCTOBER, 2010.
ORAL JUDGMENT :
Being aggrieved by the judgment and order dated 11th/12th October, 2010 in Sessions Trial No. 55/2002 passed by the learned Ad-hoc Additional Sessions Judge, Achalpur, thereby convicting the appellant for the offence punisahble under Section 235(2) of the Code of Criminal Procedure and sentencing him to suffer rigorous imprisonment for three years and to pay a fine of Rs.500/-, in default, to further suffer RI for months; and for the offence punishable under Sections 333 and 307 of the ::: Downloaded on - 02/08/2016 17:29:44 ::: 2 Indian Penal Code and sentencing him to suffer rigorous imprisonment for five years and to pay a fine of Rs.500/-, in default, to further suffer RI for months, both sentences shall run concurrently; the appellant has approached this Court by filing the present appeal.
1. Initially the appellant, along with other three accused was charged for the offence punishable under Sections 307 and 333 read with Section 34 of the Indian Penal Code for having caused grievous hurt to Rameshwar Chavan, Police Constable to deter him from discharging his duties and attempted to commit his murder while he was discharging his duties as public servant. After committal of the case, accused Sayyad Iqbal Sayyad Aziz was absconding for considerable long period. Non bailable warrants and notices to the sureties were issued, even the proclamations contemplated under Sections 82 and 83 of the Code of Criminal Procedure were also issued. However, in spite of all these efforts, the presence of accused Sayyad Iqbal Sayyad Aziz could not be secured and as such the trial has been separated against the absconding accused.
2. On appreciation of the evidence, the learned trial Court found that the evidence on record is not sufficient to prove the guilt against the other accused namely Bismillah Khan Chotekhan and Sk. Jameel Nazir Khan and as such the conviction was recorded only against the appellant/ accused Sk. Salim Shaikh Chotu.
::: Downloaded on - 02/08/2016 17:29:44 ::: 33. The brief facts of the prosecution case are summarized as under :-
On 07.03.2002, one Shantilal Bhilavekar, Head Constable attached to Paratwada Police Station along with Rameshwar Chavan and Sanjay Tayde, Police Constables were on bandobast duty in Weekly Bazar at Paratwada. At about 05:30 p.m., when they reached near Devi Temple in Chili Market, they found that the movements of four persons were suspicious. Shantilal and Sanjay apprehended two persons amongst four persons; whereas Rameshwar Chavan apprehended the remaining two persons. Out of these two persons apprehended by Rameshwar, one person took out a knife and gave blow on left thigh as well as left side of chest of Rameshwar. The assailant fled away from the spot. Another person also gave a jerk and ran away. When enquiry was made with the two persons apprehended by Shantilal and Snajay, it was disclosed that their names were Bismillah Khan and Sk. Jameel; whereas the name of assailant of Rameshwar and the other persons who fled away from the spot were Sk.
Salim and Sayyad Iqbal. Injured Rameshwar Chavan and the accused persons namely Bismillah Khan and Sk. Jameel were brought to Paratwada Police Station and Rameshwar was referred to Cottage Hospital, Achalpur for medical treatment. Later on, Rameshwar was referred to Irvin Hospital, Amravati for further medical treatment. Shantilal submitted the report and on the basis of the said report, Crime No. 31/2002 was registered.
Investigating agency was set in motion. The formalities of investigation ::: Downloaded on - 02/08/2016 17:29:44 ::: 4 namely seizure of the articles, recording of the statements of witnesses, arrest of accused persons, recovery of the weapon, were completed and on completion of the investigation formalities, charge sheet was filed in the Court of JMFC. The offences being exclusively triable by the Court of Session, the learned Magistrate committed the case to the Court of Session.
The learned trial Judge, on consideration of evidence, arrived at a conclusion that there is sufficient evidence against the appellant/accused to hold him guilty for the offences punishable under Sections 333 and 307 of the Indian Penal code and accordingly the conviction of the sentence were awarded to the appellant/accused.
4. Heard Shri J.B. Kasat, the learned Counsel appearing on behalf of the appellant and Shri S.M. Bhagde, the learned Additional Public Prosecutor on behalf of the respondent/State.
5. Shri J.B. Kasat, the learned Counsel for the appellant submitted that the evidence brought by the prosecution is not properly appreciated by the learned trial Court. He challenged the impugned judgment and order on the following grounds :-
(i) The witnesses of the prosecution are the interested witnesses and they being the police personnel, they were bound to support the prosecution case. No independent witness is examined by the prosecution;::: Downloaded on - 02/08/2016 17:29:44 ::: 5
(ii) There is variance in the evidence of the witnesses and as such the case of the prosecution becomes doubtful;
(iii) The recovery of the weapon as alleged by the prosecution is not proved by the prosecution and in view of the panch witnesses turning hostile, no reliance can be placed on the alleged recovery of the weapon; and
(iv) The medical evidence is not supporting the prosecution case.
6. Per contra, Shri S.M. Bhagde, the learned Additional Public Prosecutor supported the judgment and order passed by the learned trial Court.
7. In view of the submissions made by the learned Counsel for the appellant and the learned APP, I will proceed further. The evidence brought by the prosecution on record can be grouped as, (i) the ocular testimony of the witnesses; (ii) the recovery of the weapon; and (iii) the medical evidence. The prosecution has examined in all ten witnesses. The material witnesses are namely PW-1 Rameshwar Chavan, the victim; PW-4 Dharampal Rangari; PW-5 Abdul Matin; PW-6 Shantilal Bhilavekar; PW-9 Vinayak Gaikawad; and PW-10 Dr. Mahendra Sangole.
8. PW-1 Rameshwar Chavan is the most important witness i.e. victim of the assailant. Rameshwar (PW-1), in his substantive evidence, ::: Downloaded on - 02/08/2016 17:29:44 ::: 6 stated that on the date of the incident, he was on patrolling duty along with the other police personnel. He further stated that at that time, they found suspicious movements of the accused persons and in a view to apprehend them, they kept a watch on these persons. He further stated that he caught accused Salim from behind and the other accused Iqbal (absconding). The scuffle took place between them, accused Sk. Salim took out a knife and gave a blow on his chest on left side. He further stated that he shouted for help but nobody rushed to help him. He further stated that accused Salim and Iqbal by giving jerk to him ran away from the spot. Thereafter, he became unconscious and regain consciousness in the Cottage Hospital, Achalpur. He further stated that due to the bleeding injury, his clothes were smeared with blood. The blood stained clothes and the weapon knife were identified by PW-1 Rameshwar. He was subjected to cross-examination. In the cross-examination, it is stated by PW-1 that at the time of incident, neither he was knowing the name of the accused nor he had seen accused prior to the incident.
9. Dharampal Rangari (PW-4) is the next important witness.
Dharampal, in his evidence, stated that on the day of incident, he was attached to Paratwada Police Station and was present in the Weekly Bazar.
He further stated that on hearing hue and cry, he rushed to the spot along with one Charan Buradkar. Dharampal further stated that on reaching to the spot, he found that Rameshwar Chavan was lying on the ground with ::: Downloaded on - 02/08/2016 17:29:44 ::: 7 bleeding injury on his chest. He hired auto rickshaw and along with Charan, brought Rameshwar to Paratwada Police Station initially and thereafter to Cottage Hospital, Achalpur. Though this witness was subjected to cross-examination, he was not shaken at all.
10. Shantilal Bhilavekar (PW-6) is also a police personnel who was attached to Paratwada Police Station at the relevant time and was on patrolling duty along with Rameshwar. He also gave the details of the incident as stated by Rameshwar. The report (Exh.149) is proved by Shantilal (PW-6). Though suggestion was given to this witness that he has not apprehended the accused persons, he has denied the said suggestion.
11. Dr. Mahendra Sangole (PW-10) stated that one Dr. V.R. Nathe was attached to Cottage Hospital, Achalpur as Medical Officer along with him on the day of the incident. Dr. Sangole stated that he was well acquainted with handwriting and signature of Dr. Nathe who has issued injury certificate. He further stated that Dr. Nathe has expired three years back. The injuries sustained by Rameshwar are (i) stab injury over left lateral aspect of chest between 5th to 6th rib, and 3 inches lateral to sternum.
The size of that stab injury was ½ x ¼ inches deep. The same was caused by sharp object; and (ii) stab wound over left ghigh middle third the size ½" x ¼" (deep). The same was caused by sharp object. That certificate is Ex.71.
Knife is also a sharp object and it may cause such injuries. This witness Dr. ::: Downloaded on - 02/08/2016 17:29:44 ::: 8 Sangole in his cross examination stated that if a person falls on sharp object, the injuries mentioned in the said certificate can be caused.
12. Vinayak Gaikwad (PW-9) was the Investigating Officer. He gave details about the steps taken in the investigation i.e. recording of the statements of witnesses, seizure of blood stained clothes, effecting the arrest of the accused persons, recovery of the weapon at the instance of the appellant/accused, collecting the sample of the blood of victim Rameshwar and forwarding it to the laboratory, receiving the Chemical Analyser's Report.
13. Mohansing Thakur (PW-2) is the panch of spot panchnama and Arun Gudadhe (PW-3) is the panch for the recovery of weapon knife and they have turned hostile.
14. The testimony of the important witnesses namely Rameshwar Chavan and Dharampal Rangari establishes the incident and the assault of the appellant/accused on Rameshwar. These witnesses are not shaken at all.
15. Shri J.B. Kasat, the learned Counsel for the appellant submitted that there is variance about the injury caused to Rameshwar in the evidence of Rameshwar and Abdul Matin. He submitted that Rameshwar, in his ::: Downloaded on - 02/08/2016 17:29:44 ::: 9 evidence, stated about one injury; whereas Abdul Matin stated that Rameshwar received two injuries i.e. on chest and thigh. Though learned Counsel tried to submit that in view of the variance in the statements of Rameshwar and Abdul Matin, the prosecution story becomes doubtful. I am not persuaded to accept the submissions of the learned Counsel for the appellant in view of the medical evidence available on record. The injury certificate placed on record and it is issued by Dr. Mahendra Sangole, victim Rameshwar received two injuries i.e. one wound at left lateral aspect of chest and another stab wound at the left thigh middle 1/3 rd laterally placed. The injury received by Rameshwar on chest and thigh is proved by the prosecution.
16. Learned Counsel for the appellant submitted that the recovery of the weapon knife is not proved by the prosecution as the panch witnesses have turned hostile. I am unable to accept the submission of learned Counsel for the reason that the recovery of the weapon is duly proved by the panch witness, namely, Mahesh Mehta (PW-7) who has not shaken as well as Vinayak Gaikwad (PW-9), IO, who gave details about the recovery at the instance of the appellant/accused. Learned Counsel for the appellant submitted that the identity of the accused is not proved by the prosecution as no identification parade was conducted and as such there is no evidence of establishing the identity of appellant/accused is available on record. It is true that there is no identification parade carried out, but only ::: Downloaded on - 02/08/2016 17:29:44 ::: 10 because the identification parade is not carried out, will not lead to the conclusion that identity of the appellant is not established in view of the fact that the appellant who was arrested was identified by the victim Rameshwar (PW-1) as well as Dharampal (PW-4), Abdul Matin (PW-5) and Shantilal (PW-6).
17. In view of above discussion, I find that the witnesses examined by the prosecution namely victim P.W.1 Rameshwar, P.W.4 Dharampal Rangari, P.W.6 Shantilal Bhilawekar stood firm and they were not shaken in their cross examination. Only because they are police personnel is no reason to discard their testimony. In view of the fact, I am unable to accept the submission of learned Advocate Mr. Kasat that as no independent witness is examined by the prosecution and the witnesses ,being the police personnel, they are bound to support the prosecution case. The submission of learned Advocate about the variance in the statement of witnesses is of minor in nature. Besides, recovery of weapon is also proved by the prosecution. In view of the evidence, which is discussed above, the presence of the appellant/accused and injury sustained by Rameshwar at his hands is sufficiently proved by the prosecution.
18. The next question falls for my consideration i.e. what offence committed by the appellant/accused in view of the evidence brought on record by the prosecution.
::: Downloaded on - 02/08/2016 17:29:45 ::: 1119. In respect of charge under Section 307 of the Indian Penal Code, learned Counsel for the appellant submitted that the evidence of prosecution falls too short. He further submitted that by considering the evidence of the prosecution, the prosecution has not established that the accused had either the intention or the knowledge. Learned Counsel submitted that the accused was apprehended on the spot by Rameshwar (PW-1) and as Rameshwar was not wearing his uniform at the relevant time, the appellant when apprehended, in an attempt to save himself from Rameshwar, assaulted Rameshwar. He further submitted that the appellant and Rameshwar were not knowing to each other. There was no question of having any enmity between the appellant and Rameshwar and as such no intention can be attached to the act of the appellant. He further submitted that the appellant in the heat of passion and in an attempt of self defence, assaulted Rameshwar. Learned Counsel further submitted that Rameshwar in his evidence stated that he caught appellant from behind in the process of apprehending him on the spot. Learned Counsel further submitted that in view of this fact, the appellant was unable to know the person catching him from behind and as such no intention can be attached to the appellant.
20. Learned Counsel Shri Kasat, to support his submission, placed reliance on the judgment of the Apex Court in the case of Tukaram Gundu Naik .v. State of Maharashtra (reported in 1994(1) SCC, 465). He further submitted that in the case of Tukaram Gundu Naik .v. State of Maharashtra ::: Downloaded on - 02/08/2016 17:29:45 ::: 12 (cited supra) the nature of injury was more serious i.e. clean cut incised wound with epigastric region, another clean cut incised wound on the left elbow joint, the third clean cut incised wound on the left side of the side and the fourth clean cut incised wound over left side of the back. These injuries were caused with sharp edged weapon like knife. In the case of Tukaram Gundu Naik (cited supra), there are surrounding circumstances namely it was dark and there was a scuffle. Learned Counsel submitted that while considering the nature of the injuries and the circumstances, the Apex Court observed that, "further, the doctor's evidence would show that none of the vital organs was injured. Under these circumstances, a doubt arises whether the accused intended to commit murder and thus made an attempt. In our view the accused can be attributed only knowledge that by inflicting such injuries he was likely to cause death and an attempt to commit such an offence would be one punishable under Section 308 IPC."
Learned Counsel for the appellant submitted that the case of the appellant is on better footing than the case of Tukaram Gundu Naik (cited supra) .
Learned Counsel for the appellant, by inviting my attention to the medical evidence, submitted that Dr. Mahendra Sangole (PW-10) has not stated in his evidence that the injury is on vital part of body. He further submitted that the nature of injury i.e. size of the injuries was ½" x ¼" deep and ½" x ¼" deep to chest.
21. In view of the aforesaid judgment of the Apex Court and in view ::: Downloaded on - 02/08/2016 17:29:45 ::: 13 of the nature of the injury and the evidence of Dr. Mahendra Sangole (PW-10), I find considerable merit in the submission of the learned Counsel for the appellant Shri J.B. Kasat. It is true that the nature of injury received by Rameshwar is stab wound and size of the injury as observed in the medical certificate is ½" x ¼" and ½" x ¼" deep to chest and left thigh;
whereas the injuries referred to in the case of Tukaram Gundu Naik (cited supra) are clean cut incised wound with epigastric region, another clean cut incised wound on the left elbow joint, the third clean cut incised wound on the left side of the side and the fourth clean cut incised wound over left side of the back and in view of the surrounding circumstances and the scuffle, the Apex Court observed that Section 307 of the Indian Penal code is not attracted. I find considerable merit in the submission of Mr. Kasat, learned Counsel for the appellant that looking to the nature of injury and the surrounding circumstances i.e. the scuffle between victim Rameshwar and appellant and as the appellant was caught from behind by victim Rameshwar, the offence committed by appellant/accused would be punishable under Section 308 of the Indian Penal Code and not under Section 307 of the Indian Penal Code.
22. Insofar as the offence punishable under Section 333 of the Indian Penal Code is concerned, it is submitted by the learned Counsel for the appellant that the evidence on record shows that the victim Rameshwar was not wearing his uniform and as such the appellant had no reason to ::: Downloaded on - 02/08/2016 17:29:45 ::: 14 know that Rameshwar is a police personnel and was discharging his duties.
Learned Counsel further submitted that to establish the case against appellant for committing offence under Section 333 of the Indian Penal Code, it is necessary for the prosecution to prove that the accused voluntarily caused grievous hurt to any public servant in discharge of his duty as public servant with an intent to prevent or deter that person from discharging his duties as public servant. He further submitted that these ingredients are not at all proved by the prosecution. He submitted that victim Rameshwar was not wearing uniform as well the medical evidence falls short to establish that the appellant/accused has caused grievous hurt to victim Rameshwar. Learned Counsel, by inviting my attention to the evidence of Dr. Mahendra Sangole (PW-10) submitted that the medical certificate of Rameshwar does not reveal that Rameshwar received grievous hurt nor it is deposed by him that Rameshwar received grievous hurt. He invited my attention to Section 320 of the Indian Penal Code dealing with the grievous hurt, as under :-
"320. Grievous hurt. - The following kinds of hurt only are designated as "grievous" :-
First. - Emasculation.
Secondly.- Permanent privation of the sight of either eye. Thirdly. - Permanent privation of the hearing of either ear. Fourthly.- Privation of any member or joint.
Fifthly.- Destruction or permanent impairing of the powers of ::: Downloaded on - 02/08/2016 17:29:45 ::: 15 any member or joint.
Sixthly.- Permanent disfiguration of the head or face. Seventhly.- Fracture or dislocation of a bone or tooth.
Eighthly.- 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."
23. Learned Counsel Mr. Kasat submitted that the injury caused to victim Rameshwar cannot be termed as grievous in view of Section 320 as none of the injuries received by Ramesh falls under the description of grievous hurt. I find considerable merit in the submission of learned Counsel for the appellant. The prosecution has failed to prove that the appellant has committed an offence under Section 333 of Indian Penal Code.
24. In the result, the appeal is partly allowed. The appellant/ accused is acquitted for the offence punishable under Section 333 of Indian Penal Code and convicted for committing the offence punishable under Section 308 of Indian Penal Code. The appellant/accused Sk. Salim Shaikh Chotu is sentenced to suffer Rigorous Imprisonment for three years with a fine of Rs.500/-, in default of payment of fine, he shall further to suffer Rigorous Imprisonment for four months.
JUDGE *rrg.
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