Bombay High Court
Faizan Ahmed Abdul Wahab Shah vs The State Of Maharashtra on 25 October, 2013
Author: A. H. Joshi
Bench: A. H. Joshi
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO.275 OF 2012
Faizan Ahmed Abdul Wahab Shah )
Convict Prisoner No.C/5057,3/2 )
Aged: 38 years, at present )
lodged at Kolhapur Central )
Prison, Kalamba, Kolhapur )
Maharashtra. ) ...Appellant
vs.
The State of Maharashtra ...Respondent
Ms. Apeksha Vora, appointed advocate for the Appellant.
Ms. A. A. Mane, APP, for the Respondent - State.
ig CORAM : A. H. JOSHI, J.
RESERVED ON : 18th October, 2013.
DELIVERED ON : 25th October, 2013.
J U D G M E N T
1] Heard Ms. Apeksha Vora, learned advocate appointed by the Court and the learned APP. Perused the record.
2] The prosecution case against the accused was as follows:-
(a) The victim Noor Hasina Begam was married to the appellant in the year 2008. The couple cohabited for 2-3 months. Thereafter the accused started illtreating her on account of monetary demands. The illtreatment became unbearable and she left the accused and started living with her mother.
(b) During the span of two years when Hasina was residing with her mother the accused used to make threat calls and asked her to return back for cohabitation or else he would kill her.::: Downloaded on - 27/11/2013 20:29:50 :::
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(c) The parents of victim performed her second
marriage with one Parvez on 12.05.2010 and she began living with Parvez at Govandi. Appellant learnt about the second marriage of the victim. He started going to her house and threatening her. On one occasion the accused went to her house and tried to choke her throat.
(d) On 10.07.2010 at about 10.00 a.m. when Noor Hasina was alone in the house and was cooking food, the appellant arrived there and started abusing her over second marriage against his wishes, caught her neck and began chocking it. Noor Hasina pushed the accused to save herself. The appellant took out a chopper which was tucked to his waist and assaulted her with that chopper.
(e) Hasina tried to save herself from the blow of chopper. She received blow of chopper on her palm.
Appellant then pressed her down and inflicted multiple blow of chopper over her shoulder, back etc. due to which she sustained injuries, fainted and fell down. Thereafter the accused ran away.
(f) One woman in the neighbourhood informed about assault to the victim's brother. The brother arrived on the spot. He was accompanied by his wife. They took her to the hospital.
(g) The victim was admitted in the hospital as an indoor patient and was continued as an indoor patient for a long time.
(h) The police recorded the statement of victim's brother in the hospital and it is treated as FIR. Later, Noor Hasina's statement was recorded.
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(i) After completing the investigation, the charge
sheet was filed under Section 307 of the Indian Penal Code.
3] The case was tried by the learned Court of Sessions for Greater Bombay, who was pleased to convict the appellant under Section 326 of the Indian Penal Code and sentenced him to five years R.I. fine etc. 4] This appeal received from jail.
5] The grounds raised and argued in support of appeal by advocate who was appointed are summarized as follows:-
(a) The admission of all the documents was done by the Advocate for the appellant who was initially representing the appellant and who had later abandoned from the Trial.
(b) Admission of documents was said Lawyer's decision which was done without consulting the accused.
(c) Due to said admission, the prosecution did not bring witnesses to prove the injuries and accused had no opportunity to test the truth as to fact of hurt on attempt to murder or whatsoever.
(d) The said admission has caused an immeasurable harm to the appellant's defence.
(e) Prosecution has relied only on the
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statements of interested witnesses and
independent witnesses were not tendered.
(f) Testimony of PW1 was not corroborated by the evidence of any independent witness.
(g) Out of four witnesses the victim i.e. PW-1 and complainant PW-2 are related to each other and hence the testimony of PW-2 falls under the category of interested witnesses who would liked to see that the appellant shall be punished, and hence they are interested witness.
(h) The
ig injuries described in the
show that there was chop wound on right waist at certificate metacarpal and median.
(i) The injuries mentioned by the victim and the injuries found on her body do not match.
(j) The victim had alleged that she was assaulted five to six times over her back and waist. Any such injuries are not reflected in injury certificate. This discrepancy was not taken into consideration by the learned trial Court as the victim's exaggeration bends towards falsehood.
(k) It is evident from the testimony of the victim that the attack was not intended or directed towards the vital part of the body of the victim which proves that the intention of whoever attacked the victim was not to kill her.
(l) The accused went to trial without proper aid and expert legal assistance which was his right and this has prejudiced his defence.::: Downloaded on - 27/11/2013 20:29:50 :::
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(m) The weapon as produced in the Court is also not a chopper but a scythe and therefore the same is also vacillating.
6] Perusal of record reveals that, testimony of PW1 and the injury suffered by the PW-1 described in injury certificate (discharge summary) is the main foundation of proof of charge of offence under Section 307 of the Indian Penal code of attempt to murder, which was ultimately held to be the offence proved under Section 326 of the Indian Penal Code.
7] The injuries described the discharge summary are as follows:-
"Chop wound on right wrist at 2 nd/ 3rd/ 4th /5th metacarpal median ulnar N. injury flexion tendon injury."
(quoted from page No.46 of the paper book).
8] It is seen that the injury certificate was the document no.9 in the list of documents. Record shows that the learned advocate who was initially representing the accused and had abandoned, had admitted the documents by making an endorsement on list of documents on 10.02.2011.
9] Perusal of record reveals that the appellant's advocate had abandoned the proceedings. Ultimately, the advocate from the Legal Aid Panel was appointed.
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10] The advocate appointed in the trial Court from legal
aid panel submitted application at Exh.18A and requested that the accused be allowed to retract from admission of certain documents done earlier.
11] The learned Sessions Judge has rejected the said application. It is seen that it is recorded in the Roznama dated 29.07.2011 as follows:-
"29/07/11 Coram: H.H. The Addl. Sessions Judge, SC.No. Shri N.P. Dalvi (C.R. No.07) Sewree, Mumbai APP Shri Lokhande for the state present. 681/10 PC Shivaji Nagar Police Station present.
Accused in j/c not produced.
None appear for accused.
Kept back:
later on at : 12.10 pm. Accused produced from j/c.
Ex:17 Application filed by advocate for not admitting document. - by passing order on it, same is rejected.
Adjd. For R/E on 16/08/2011."
(quoted from page No.8 of the paper book).
12] In the aforesaid background, the trial proceeded where the fact of injuries and duration of admission in the hospitalization, were not required to be proved by the prosecution by bringing witnesses in the background that the injury certificate/discharge summary was on admitted documents.
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13] The injury described in the certificate is fracture
shown with symbol "#". The description does not clarify
whether the fracture is caused or seen to a particular
finger 2nd, 3rd, 4th and 5th metacarpal and median.
14] It is to be noted that the injuries described by
PW-1 in her deposition read as follows:-
"I tried to save myself and in that process I got blow of chopper over my left palm. He then pressed me down and gave multiple blows of chopper over my shoulder and back at 5-6 times.
I sustained bleeding injuries."
(quoted from page Nos.51 and 52 of the paper book).
15] In the cross examination PW-1 has admitted that there is variation in the description of actual injuries and those narrating by her before the police.
16] As regards the injury PW-2 states as follows:-
"On 10/7/2010, at about 10.15 am I went to meet my sister Noor Hasina. I saw her lying on the ground with injury over her back, shoulder, hand. She was semi conscious. I asked her about the injuries when she told that Faizal (accused) assaulted her with chopper."
(quoted from page Nos.58 and 59 of the paper book).
17] In so far as act of assault is concerned, PW-1 alone
is a witness. Other witnesses who are shown as eye witnesses
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are not in fact an eye witnesses as they had arrived at the spot after the incident had occurred.
18] The application for retraction was rejected on 29.07.2011. The trial began on 16.08.2011 and on that date the examination in chief and cross examination of PW-1 was completed. Roznama shows that on earlier dates witnesses were not brought by the prosecution. Therefore, the record does not support any justification for rejection of the application for retracting from the admission. Even if the application would have been considered favourably, witnesses more could have been summoned without delay, for securing ends of justice.
19] The perusal of evidence and further reveals that:-
(a) The weapon does not match with the description given by the witness.
(b) The injuries do not match with version of witness.
(c) Though the medical certificate shown fracture by "symbol" it was necessary for the prosecution to prove the fracture by bringing evidence of X-ray examination and supporting testimony of radiologist.
(d) The application for permission for retracting for admission of documents was submitted before the Court before the trial had commenced, and it was rejected in haste.::: Downloaded on - 27/11/2013 20:29:50 :::
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(e) In the background that accused had
applied for retracting from the
admission of documents, he has suffered prejudice.
20] It is seen that the injuries are not proved to be grievous hurt. There cannot be a presumption that the grievous hurt was caused without formal proof of the fact of fracture. The fact of existence of fracture cannot be diagnosed and certified in absence of proof of x-ray plates, unless the fact of fractured bones is perceivable barely of perception by naked eyes and sheerly by clinical examination, its being vivid and palpable. Therefore, proof of x-ray plates was necessary particularly, the appellant had made an attempt to retract the admission of medical certificate/ discharge summary.
21] Admission of such a crucial document was akin to admission of guilt or a confession which an accused is not bound to make and when made the Court is not bound by such confession. Ordinarily, when a confession does not bind the Court, the prosecution is not relieved from its indelible duty to prove the guilt beyond shadow of a reasonable doubt.
22] In present case, the accused was unrepresented, and hence the legal aid was given. Legal aid means aid of able and resourceful aid, and not by way of a compliance of ::: Downloaded on - 27/11/2013 20:29:50 ::: sbw 10/11 apeal 275.12 formality of assistance. The order refusing to retract from admission of document should have been challenged. It appears that the appellant could not get said advise and he has rather starved of competent and punctual legal aid and advise.
23] Present is a case which can be cited as an illustration of prejudice to the defence of the accused due to erroneous admission of an incriminating document. Said admission could be regarded as reckless and in excess of authority and duty of a lawyer towards his client. Nothing fact, in law or morality did bind the lawyer to admit the injury certificate/discharge summary.
24] In this situation, there exist serious reasons to entertain grave doubt as to whether in fact the accused is guilty of offence punishable under Section 326 of the Indian Penal Code, and conviction needs to be modified to lesser sentence.
25] Considering the weakness of prosecution case even if PW-1 is to be believed, it would be turn out the simple hurt due to causing incised wound by use of a hard but sharp, by deadly weapon and not the offence under Section 326 of the Indian Penal Code. Therefore, the conviction of appellant is modified to section 324 of the Indian Penal Code.
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26] In the result, appeal succeeded and is partly allowed.
27] Heard as regards sentence it is seen that the accused
was in jail since 20.09.2011. Now he has already completed two years and few more days. Therefore, the sentence undergone by appellant for two years and few days is considered as adequate of sentence. Sentence is modified accordingly. Appellant be released forthwith.
28] Advocate
ig Ms. Apeksha Vora, who was appointed to
represent the appellant be paid from legal aid fund an amount of Rs.4500/- within one month from today.
( A. H. JOSHI, J.) wadhwa ::: Downloaded on - 27/11/2013 20:29:50 :::