Bombay High Court
Mohd Alam Mohd Salim And Another vs State Of Mah., Thr. Pso P S Gittikhadan ... on 20 November, 2019
Author: Swapna Joshi
Bench: Swapna Joshi
REVN 223.19.odt 1
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH : NAGPUR
CRIMINAL REVISION NO.223 OF 2019
1] Mohd Alam Mohd Salim,
Aged about 38 years,
Occupation-Plumber.
2] Mohd Yunus Jahiruddin,
Aged about 33 years,
Occupation-Plumber.
Both R/o. Empress Mill Chawl Qtr,
Bajeria, Near Hanuman Mandir,
P.S. Ganeshpeth, Nagpur. .. Applicants
.. Versus ..
State of Maharashtra,
Through P.S.O. Gittikhadan Police
Station, District-Nagpur. .. Respondent
..........
Shri R.K. Tiwari, Advocate for Applicants,
Shri Amit Chutke, APP for Respondent-State.
..........
CORAM : MRS. SWAPNA JOSHI, J.
DATED : 20.11.2019.
::: Uploaded on - 11/12/2019 ::: Downloaded on - 24/04/2020 10:01:02 :::
REVN 223.19.odt 2
JUDGMENT
1] Admit. Heard the matter finally with the consent of the learned advocate for the applicants as well as the learned Additional Public Prosecutor for the respondent-State.
2] This criminal revision is directed against the judgment and order dated 20.6.2019 passed by the learned Additional Sessions Judge- 12, Nagpur in Criminal Appeal No.111/2016 whereby the applicants were convicted for the offence punishable under Section 324 r/w 34 of the Indian Penal Code and were sentenced to suffer simple imprisonment for three months. So also both the accused were convicted for the offence punishable under Section 323 r/w 34 of the Indian Penal Code and were sentenced to suffer simple imprisonment for one month. The fine amount imposed was confirmed. The learned Judicial Magistrate, First Class, Court No.9, Nagpur has convicted the accused nos.1 and 2 for the offence under Sections 324 and were sentenced to suffer imprisonment for two years and fine of Rs.1000/- each. The accused nos.1 and 2 were also convicted for the offence punishable under Section 323 r/w 34 of the Indian Penal Code and were sentenced to suffer imprisonment for one year and fine of Rs.1000/- each.
::: Uploaded on - 11/12/2019 ::: Downloaded on - 24/04/2020 10:01:02 ::: REVN 223.19.odt 3 3] The prosecution case, in brief, is that the complainant Shyam Ramdas Dongre (PW-1) is the resident of Samta Nagar, Plot No.176, Nagpur. On 22.8.2010 at about 14.30 am at Mahesh Nagar, in the house of Udase, went for the work of tiles fitting along with PW-3 Ashish Ramteke and PW-4 Gautam Gajbhiye. At that place, the accused persons were also doing the work of plumber. There was quarrel between the complainant Shyam and the accused persons on the count of tiles fitting. At that time, the accused no.1 Mohd. Alam caught hold of the collar of PW-3 Ashish, on which the complainant PW-1 Shyam and PW-4 Gautam intervened. The accused no.2 Mohd. Yunus assaulted PW-1 Shyam and PW-4 Gautam by means of spanner and caused bleeding injuries. The complaint Exh.11 was lodged by PW-1 Shyam at Gittikhadan Police Station, Nagpur. On the basis of the said complaint, the offence came to be registered. The formal investigation was conducted and the statements of the witnesses were recorded. The injured witnesses were referred to Indira Gandhi Medical College and Hospital at Nagpur. The weapon 'spanner' was taken charge by the police vide Exh.16. After the completion of investigation, the charge-sheet was filed in the court of learned JMFC, Nagpur. The learned JMFC, after hearing both the sides and recording the evidence, convicted both the accused as aforesaid. ::: Uploaded on - 11/12/2019 ::: Downloaded on - 24/04/2020 10:01:02 ::: REVN 223.19.odt 4 The judgment and order of the learned JMFC was challenged in the Sessions Court, whereby the learned Additional Sessions Judge has confirmed the judgment and order passed by the learned JMFC. 4] The learned advocate for the applicants vehemently argued that both the courts below have not considered the evidence led by the prosecution witnesses in its right perspective and have erroneously convicted the accused. It is submitted that the medical evidence has not been proved by the prosecution by examining the medical officer, who allegedly treated the injured witnesses PW-1 Shyam and PW-4 Gautam. It is submitted that the medical certificates are not proved before the court. So also the spanner, which was produced before the court, was not the same weapon, by which the witnesses were allegedly assaulted. It is submitted that the witnesses failed to identify the said spanner before the court and stated that was not the spanner by which the witnesses were assaulted. It is submitted that, in these circumstances, it is not clear as to whether the spanner, which was used at the time of offence, was of such a nature that was likely to cause the death of the witnesses and therefore no offence under Section 324 of the Indian Penal Code is made out. It was submitted that the judgment and order passed by the courts below are to be quashed and set aside. ::: Uploaded on - 11/12/2019 ::: Downloaded on - 24/04/2020 10:01:02 ::: REVN 223.19.odt 5 5] As against this, the learned Additional Public Prosecutor for the respondent-State supported the judgment passed by the courts below and contended that the evidence of the witnesses show that PW-1 Shyam and PW-4 Gautam were treated by the medical officer and PW-1 Shyam had sustained five stitches and PW-4 Gautam had sustained four stitches. In view thereof, although the medical officer is not examined and the medical certificates are not proved by the prosecution, it can be safely said that the witnesses PW-1 Shyam and PW-4 Gautam had received injuries and therefore they were treated for the stitches, which they had received due to assault by the spanner. It is submitted that the spanner, which was used in the offence, had caused those injuries and therefore the offence under Section 324 of the Indian Penal Code is made out.
6] In order to consider the rival contentions of both the sides, the testimony of the prosecution witnesses is to be scrutinized properly. The evidence of PW-1 Shyam Dongre shows that on 22.8.2019 at about 2.30 pm, he went to the house of one Ravi Ramteke for the work of tiles fitting at Mahesh Nagar along with PW-3 Ashish and PW-4 Gautam. At that time, the accused persons were doing the work of tap fitting, so also they were to do the fitting work of the sheet on the toilet. There was ::: Uploaded on - 11/12/2019 ::: Downloaded on - 24/04/2020 10:01:02 ::: REVN 223.19.odt 6 dispute between PW-3 Ashish and the accused persons. PW-3 Ashish said to them that they will do the tiles fitting on the next day. On that count, there was dispute between them, which was resulted in the quarrel and suddenly the accused no.1 Mohd. Alam caught hold of the collar of PW-3 Ashish and assaulted him. At that time, PW-1 Shyam intervened. However, he was assaulted by accused no.2 Mohd. Yunus by means of a spanner on his head as well as on the head of PW-4 Gautam. A complaint came to be lodged by PW-1 Shyam vide Exh.11. 7] During the cross-examination, PW-1 Shyam admitted that the spanner, which was shown to him, was not the same weapon by which the accused no.2 Mohd. Yunus assaulted him. According to him, it was a big spanner. The testimony of PW-1 Shyam, in respect of the assault, is not shaken in the cross-examination and is supported by the evidence of PW-3 Ashish and PW-4 Gautam.
8] The testimony of PW-4 Gautam Gajbhiye is on the same lines. PW-4 Gautam has deposed about the assault by the accused no.2 Mohd. Yunus on his head by means of spanner. He also deposed about the assault by the accused no.2 Mohd. Yunus on the head of PW-1 Shyam. PW-4 Gautam stated that he suffered four stitches due to the said assault on his head and he was treated at Mayo Hospital at Nagpur. ::: Uploaded on - 11/12/2019 ::: Downloaded on - 24/04/2020 10:01:02 ::: REVN 223.19.odt 7 9] PW-3 Ashish Ramteke also supported the testimony of PW-1 Shyam and PW-4 Gautam on the material aspects. His evidence is also on the same lines. His testimony is not shaken in the cross-examination. 10] The overall evidence of the prosecution witnesses on record show that the accused no.1 Mohd. Alam assaulted and slapped and accused no.2 Mohd. Yunus assaulted by means of the spanner. The evidence of PW-1 Shyam, PW-3 Ashish and PW-4 Gautam corroborates with each other on the material aspects and establishes that the accused no.1 Mohd. Alam caught hold of the collar of PW-3 Ashish and assaulted him, whereas accused no.2 Mohd. Yunus assaulted PW-1 Shyam as well as PW-4 Gautam on their head by means of spanner. No doubt, all the witnesses have said that the spanner produced in the court was not the spanner which was used in the offence. However, they stated that the spanner used in the offence was bigger than that. So also no medical evidence on record to corroborate the testimony of PW-1 Shyam, PW-3 Ashish and PW-4 Gautam. However, only because that spanner which was produced before the court, according to the witnesses, was not the spanner used in the offence, their testimony cannot be doubted. Their testimony is consistent on the evidence that a spanner was used in the offence and PW-1 Shyam as well as PW-4 Gautam received injuries on ::: Uploaded on - 11/12/2019 ::: Downloaded on - 24/04/2020 10:01:02 ::: REVN 223.19.odt 8 their head and sustained stitches due to the said injuries. PW-1 Shyam received five stitches and PW-4 Gautam received four stitches on their head. The said evidence is sufficient to indicate that the weapon, which was used in the offence, was likely to cause death. So also the evidence on record shows that they have received bleeding injury. Similarly the evidence on record also shows that the spanner was seized from the accused no.2 Mohd. Yunus.
11] Thus there is sufficient material on record to show that there was common intention shared as such by both the accused to assault PW-1 Shyam and PW-4 Gautam. It is noticed that both the accused shared the common intention and therefore accused no.1 Mohd. Alam assaulted PW-3 Ashish and accused no.2 Mohd. Yunus assaulted PW-1 Shyam and PW-4 Gautam by means of spanner in order to share the common intention. The evidence on record shows that accused no.1 Mohd. Alam has committed the offence under Section 323 of the Indian Penal Code and the accused no.2 Mohd. Yunus has committed the offence under Section 324 of the Indian Penal Code. In view of the facts and circumstances of the case, it is held that both the courts below have rightly come to the conclusion that the offence as aforestated has been committed by the accused persons. The learned trial Judge has rightly convicted the accused.
::: Uploaded on - 11/12/2019 ::: Downloaded on - 24/04/2020 10:01:02 ::: REVN 223.19.odt 9 12] The learned advocate for the applicants submitted that both the applicants are not having any antecedents, so also they have to look after their family.
13] Considering the nature of offence, the following sentence would meet the ends of justice. Hence, the order :
ORDER
(i) The Criminal Revision is partly allowed.
(ii) Both the applicants are convicted for the offences punishable under Sections 323 and 324 r/w 34 of the Indian Penal Code. The sentence of imprisonment is set aside. However, the applicants are directed to pay a fine of Rs.1,000/-
each for the offence punishable under Section 323 r/w 34 of the IPC.
(iii) The applicants are also directed to pay a fine of Rs.4,000/- each for the offence punishable under Section 324 r/w 34 of the IPC. Out of the said fine amount, an amount of Rs.4,000/- each is to be paid towards compensation to PW-1 Shyam Dongre and also to PW-4 Gautam Gajbhiye, within a period of two months.
[MRS. SWAPNA JOSHI, J.] Gulande ::: Uploaded on - 11/12/2019 ::: Downloaded on - 24/04/2020 10:01:02 :::