Bombay High Court
Asif Khan Babbu Khan Pathan vs The State Of Mah. Thru Pso Katol on 14 February, 2019
Author: V. M. Deshpande
Bench: V. M. Deshpande
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH AT NAGPUR
CRIMINAL APPEAL NO.697/2006
Asif Khan s/o Babbu Khan Pathan,
aged 19 years,, Occ. Puncture Repairing,
r/o Behind Hindustan Petroleum Godown,
Sawargaon, Katol, Dist. Nagpur. .....APPELLANT
...V E R S U S...
The State of Maharashtra through
Police Station Officer, Police Station,
Katol, Dist. Nagpur. ...RESPONDENT
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Mr. V. D. Awchat, Advocate appointed for appellant.
Mrs. S. V. Kolhe, A.P.P. for respondent.
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CORAM:- V. M. DESHPANDE, J.
DATED :- 14.02.2019
ORAL JUDGMENT
1. Present appeal is directed against judgment and order of conviction passed by Ad hoc Additional Sessions Judge-6 dated 17.10.2006 in Sessions Trial no.230/2005, whereby appellant is convicted by learned Judge of the Court below for an offence punishable under Section 326 of the Indian Penal Code (IPC) and is directed to suffer rigorous imprisonment for three years and to pay a fine of Rs.1,000/-, in default to suffer simple imprisonment for one month.
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2. Heard Mr. V. D. Awchat, learned counsel appointed for appellant and Mrs. S. V. Kolhe, learned A.P.P. for respondent- State. According to learned counsel for appellant, in view of the fact that eye witnesses have turned hostile and there was darkness, identity of appellant is not firmly established and therefore he was entitled to get benefit of doubt and he submitted that the appeal be allowed.
In the alternative, it is the submission of learned counsel for appellant that appellant was already in jail for two months. Therefore, if the appeal is dismissed then leniency be shown in respect of the jail sentence.
3. Per contra, Mrs.Kolhe, learned A.P.P. would submit that the Court below has rightly relied upon testimony of injured Sandeep (PW4). She also submitted that perusal of evidence is also pointing figure of guilt towards appellant. She therefore submitted that the appeal be dismissed. Insofar as sentence is concerned, it is submission of learned A.P.P. that the Court below itself has shown sufficient leniency, warranting no further leniency in favour of appellant.
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4. Suresh Gadekar (PW13) was attached to Police Station, Katol on 03.12.2004. At 10.40 in the night, Medical Officer Rewatkar gave intimation that Sandip Kakde was admitted in the hospital in injured condition and he is very serious. He, therefore, immediately deputed PSI Padole (PW10) to visit hospital. On 04.12.2004, Arvind Dhore (PW1) lodged his oral report. It is at Exh.-21. On the basis of said, Gadekar (PW13) registered an offence against appellant vide Crime No.244/2004 for an offence under Section 307 of the IPC. Printed FIR is at Exh.-22. He visited the spot and carried out spot panchanama, Exh.-56 in presence of panchas. He collected blood mixed as well as simple earth under seizure panchanama, Exh.-55. He arrested appellant on 04.12.2004 and seized his clothes. Arrest panchanama is at Exh.-70 whereas seizure panchanama seizing the clothes of the appellant is at Exh.-65. During investigation, it was revealed to him role of brother and father of appellant and they were also arrested. Their clothes were also seized. During Police Custody Remand, on 07.12.2004, the appellant made disclosure statement in presence of pancha, Amit Kale (PW2), which led to discovery of weapon knife, which was concealed beneath railway sleepers. Admissible portion of memorandum panchanama is at Exh.-44 and ::: Uploaded on - 15/02/2019 ::: Downloaded on - 16/02/2019 01:04:24 ::: 4 apeal697.06.odt recovery panchanama is at Exh.-45. Muddemal property was sent to Chemical Analyser (CA). The CA reports are filed on record. After completion of investigation, he submitted charge-sheet against the accused persons before the Court of learned Magistrate. Learned Magistrate, in whose Court the charge-sheet was presented, found that offence is exclusively triable by Court of Sessions, therefore, committed the case to the Court of Sessions. Learned Ad hoc Additional Sessions Judge framed charge against the appellant and his father Babbu Khan and brother Hamid Khan for an offence punishable under Section 307 read with 34 of the IPC. In order to bring home guilt of accused persons, prosecution has examined in all 14 witnesses and also relied on various proved documents. Statement of appellant was recorded under Section 313 of the Code of Criminal Procedure. Defence of appellant was that he is falsely implicated in the crime.
5. After a full dress trial, learned Court below acquitted accused no.2-Babbu Khan and accused no.3-Hamid Khan so also acquitted appellant of an offence punishable under Section 307 of the IPC. No appeal is preferred by the State against said acquittal. However, Court below convicted the appellant for an offence ::: Uploaded on - 15/02/2019 ::: Downloaded on - 16/02/2019 01:04:24 ::: 5 apeal697.06.odt punishable under Section 326 of the IPC and directed that he shall suffer rigorous imprisonment for three years.
6. Ramesh (PW5) and Chandrashekhar (PW6) who were cited as eye witnesses, have turned hostile and they are not supporting the prosecution at all. Sachin (PW9) whose evidence shows that he took bicycle of the appellant for a ride and went to Kale Chowk on the said bicycle from where injured Sandeep took the bicycle from him and went to a pan shop of Bawiskar. After five minutes, he also arrived at the pan shop of Bawiskar. He noticed hot exchange of words between appellant and Sandip Kakde. Sachin's evidence further shows that, quarrel was over and appellant-Asif went towards his house. Similarly, evidence of Pramod (PW7) corroborates about hot exchange of words between appellant and injured Sandeep on account of bicycle. According to this witness, appellant blamed Sandeep that he has damaged his bicycle, which he was intending to use in cycle race of which he was one of the participants. According to the evidence of Pramod, all accused have beaten Sandeep. It was intervened by him thereafter, Sandeep ran towards house of Dinu Bawiskar and he was followed by appellant and his brother.
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7. Arvind Dhore (PW1) has lodged report. From his evidence, it is clear that he is not an eye witness to the incident. However, as per his evidence, injured Sandeep disclosed to him that he was assaulted by the present appellant.
8. Injured Sandeep was examined by Dr. Anand Gajbhiye (PW14), Medical officer of Government Medical College, Nagpur on 03.02.2004. He noticed following 10 injuries:
"i) Incised wound on left thigh upper 1/rd laterally about 5 X 3 X ½ cms.
2) Incised wound on right thigh upper 1/3rd laterallya bout 2 X 1 X ½ cms.
3) Incised wound forehead right about 4 X 1 X 1½ cms.
4) Stab wound right lumber region about 2X1 cms.
5) Incised wound right side of chest middle 1/3rd about 4 X 1½ cms.
6) Stab wound right side of chest midclavicular line about 4 X 1 X ½ cms.
7) Stab wound right side of abdomen in midclavicular line about 3 X 1 cms.
8) Stab wound left side of abdomen near midline about 2 X 1.
9) Incised wound left side of chest lower 1/3rd about 4 X 1 X ½ cms.
10) Incised wound right side of chest midclavicular line about 1 X ½ X ½ cms."
9. As per evidence of doctor, injury nos.4, 6, 7 and 8 were grievous in nature whereas injury nos. 1, 2, 3, 5, 9 and 10 were simple. He proved injury report, which is at Exh.-91. His evidence ::: Uploaded on - 15/02/2019 ::: Downloaded on - 16/02/2019 01:04:24 ::: 7 apeal697.06.odt also shows that police referred a knife in sealed condition for his opinion as to whether the injuries can be caused by said weapon. He gave opinion Exh.-92 by which he opined that injuries mentioned in the report could be caused by the knife referred to him. Perusal of Exh.-92 shows that he resealed the knife and handed over to the Police Constable on duty.
10. From the evidence of Dr. Gajbhiye and injury report, Exh.-91, it is clear that the injured Sandeep suffered 10 injuries in the nature of stab wounds and incised wounds on various parts of his body. According to the prosecution, it is the appellant, who has caused those injuries.
11. In this prosecution case, motive is established. As per the evidence of various witnesses examined and cross-examined by the appellants, it is firmly proved that on 04.12.2004, there was cycle race scheduled from Katol to Sawargaon and appellant was one of the participant. Winner of said race was to be awarded a cash price of Rs.5,000/-. From the cross-examination of Arvind Dhore (PW1), it is brought on record that appellant was expecting to win said cycle race and he was taking tremendous pains and ::: Uploaded on - 15/02/2019 ::: Downloaded on - 16/02/2019 01:04:24 ::: 8 apeal697.06.odt efforts for last one month. According to prosecution, injured Sandeep, as it could be seen from the evidence of Sachin Bawiskar (PW9), took the cycle of appellant from Sachin for a ride and went to Kale Chowk where he met appellant and there hot exchange took place, resulting into damage of the cycle. It appears that, due to that the appellant got infuriated and assaulted on Sandeep.
12. Injured Sandeep is examined as prosecution witness no.4. His evidence would show that on the day of incident i.e. on 03.12.2004 in between 09.30 p.m. to 09.45 p.m., near pan shop of Bawiskar at Katol, Sachin (PW9) brought a racing cycle and he took that cycle and went to pan shop of Bawiskar for taking kharra (tobacco). Appellant was present on the pan shop and he asked as to how he is in possession of the bicycle when it belongs to him. Upon that as per evidence of Sandeep, he told the appellant that he had taken bicycle from Sachin. On that quarrel took place and the appellant started giving abuses in the name of mother of the injured. As per the evidence, thereafter, appellant went towards his house and came back along with co-accused, the co-accused caught hold him and thereafter appellant gave knife blows on his chest, right and left thigh, right side of forehead. ::: Uploaded on - 15/02/2019 ::: Downloaded on - 16/02/2019 01:04:24 :::
9 apeal697.06.odt Anyhow, he rescued himself and ran towards house of Bawiskar. He was chased by the appellant and he was again given stab blows on his stomach. His evidence would show that when he was taken to Primary Health Centre, Katol, he became unconscious and he has become unconscious until after 4-5 days and was indoor patient for about 15 days. In this cross-examination, it is brought on record that since he was on oxygen, he could not give memorandum statement to police. Evidence of the injured is not at all challenged on the point of assault by him on the appellant.
A suspicion about prosecution case was tried to be created that as there was failure of electricity, the appellant could not be identified. Prashant Rode (PW3) is Chief Officer of Municipal Council, Katol. As per his evidence, he gave information to police that on 03.12.2014, street lights were on, particularly on Pole Nos. M06, M07 and M10 and police No. K2. From further cross-examination of the injured, it is clear that there was electricity at the time of assault near the house of Dhore.
In view of unshaken evidence of injured Sandeep (PW4), merely because Rakesh (PW5) and Chandrashekhar (PW6) have turned hostile, that is not sufficient to throw case of prosecution.
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13. During the course of investigation, knife was seized under memorandum statement of appellant. It was seized from a place, which could only be in the knowledge of appellant, since it was concealed beneath sleeper of railway track. Exh.-45 panchanama shows that it was sealed at the spot itself. Dr.Gajbhiye also stated that the weapon reached to him in a sealed condition and he handed over the weapon by resealing it. CA report Exh.-78 shows that knife was received in the office of CA in a sealed condition.
Asper the CA report, Exh.-78, blood group of injured Sandeep was determined as "AB". CA report Exh.-78 shows that knife was having human blood of group "AB". Similarly, clothes of accused were also sent to the CA in a sealed condition. CA report Exh.-77 shows that full pant of the appellant was found to be stained with human blood of group "AB". Thus, scientific evidence also corroborates the prosecution case.
14. Insofar as argument about reduction of sentence is concerned, it is the submission of learned counsel for the appellant that appellant was arrested on 04.12.2004 under Exh.-70 and he ::: Uploaded on - 15/02/2019 ::: Downloaded on - 16/02/2019 01:04:24 ::: 11 apeal697.06.odt was in jail till 06.02.2005. Thus, he was in jail for about 2 months and 2 days. According to the learned counsel, leniency should be shown and the jail sentence should be the jail sentence, which he has already undergone.
15. I am not persuaded with humble submission of the appellant on the point of leniency. No doubt true that appellant is a young person and was preparing himself for a cycle event and his cycle was damaged by Sandeep (PW4) resulting into attack on him. However, looking to the nature of injury on the person of injured and looking to the fact that out of 10 injuries, 4 were grievous in nature, in my view, Court below has already shown leniency in favour of appellant, warranting no leniency from this Court since it will not give a good message to the society.
16. On Reappreciation of entire evidence and impugned judgment, I am of the view, Court below has correctly appreciated the evidence brought on record by the prosecution to record a finding of guilt against the appellant for an offence under Section 326 of the IPC, warranting no interference from this Court. Hence, I pass the following order.
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ORDER
(i) Appeal is dismissed.
(ii) Impugned judgment and order dated
17.10.2006, passed by Ad hoc District Judge-6 and Additional Sessions Judge, Nagpur in Sessions Trial No. 230/2005, thereby convicting the appellant for an offence punishable under Section 326 of the Indian Penal Code and sentencing him to undergo rigorous imprisonment for three years and to pay a fine of Rs.1,000/-, stands confirmed.
(iii) Appellant-Asif s/o Babbu Khan Pathan, who is present in Court, is taken in custody. Registrar (Judicial) is directed to lodge the appellant in Central Prison, Nagpur to serve out the remainder of his jail sentence. Registrar (Judicial) is also directed to ensure prompt supply of copy of judgment to the appellant in jail, for taking suitable steps, if he so desires.
(iii) Professional charges of Mr. V. D. Awchat, Advocate, who is appointed from High Court Legal Services Sub Committee, Nagpur, are quantified at Rs.5,000/-.
JUDGE kahale ::: Uploaded on - 15/02/2019 ::: Downloaded on - 16/02/2019 01:04:24 :::