apeal494-95.sxw jpc IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NO. 494 OF 1995 Abdul Kadir s/o Shaikh Nazir R/o Hanuman Nagar Zopadpatti Turbe, Dist. Thane .. Appellant (Original Accused No.1) The State of Maharashtra .. Respondent Mr. Ashish Sawant i/by S.R.Chitnis for the Appellant Mr. S. A. Shaikh, APP for the State CORAM : N . D. DESHPANDE, J. Reserved for judgment on : 30/03/2011 Judgment pronounced on : 06 /04/2011 JUDGEMENT 1. This appeal impugns the correctness of the judgment and order of conviction and sentence, dated 28th August, 1995 passed by the learned IIIrd Additional Sessions Judge, Thane in Sessions Case No.437 of 1991. 2. The appellant-original accused no.1 was charged jointly with co-accused-accused no.2 under sections 307 read with 34 of the Indian Penal Code. By the impugned judgment and order, the 1 apeal494-95.sxw appellant- accused alone has been held guilty under Section 307 of I.P.C. and sentenced to suffer rigorous imprisonment for 5 years and to pay fine of Rs.2000/-, in default, to suffer I.R. for six months. However, the accused No.2 came to be acquitted. 3. Heard both the side. 4. The material facts as disclosed from the record and the impugned judgment can be stated briefly as under: 5. One Jabbar Shaikh (PW-1) and his cousin Shaikh Ismail (PW-8) both were staying in Hanumannagar Zopadpatti, Turbhe, Dist. Thane, in the year 1990. They both were employed with Allana Company at Vashi. They both are the victim of incident dated 23/10/1990. The appellant-original accused no.1 as well as co- accused namely Abdul Sattar (acquitted) were also staying in the same Zopadpatti at Turbe in one room. Thus, the assailants- accused and the victim Jabbar Shaikh (PW-1) and Shaikh Ismail (PW-8) were known to each other. It is alleged that on 23/10/1990, Jabbar Shaikh (PW1) and his cousin Shaikh Ismail (PW-8) both had returned home at about 4.00 p.m. from work. After some time, they left house for marketing and on the way back, they came across the accused-appellant who obstructed their way by stretching legs. Therefore, there was quarrel between them in the beginning 2 apeal494-95.sxw and it took a serious turn when they returned from the market. The appellant-accused first caught hold Jabbar PW-1 and dragged him on the road to some distance, then he took out a knife and gave blow on his stomach. His cousin Ismail (PW-8) rushed for his help. He was also given knife blow in his abdomen by the appellant accused. On hearing cries of Jabbar (PW-1)and Ismail (PW-8), neighbours rushed to the spot. According to the prosecution, at the time of incident, original accused no.2 Abdul Hafiz shaikh Nazir was accompanied accused no.1- Abdul Kadir Shaikh and therefore the were jointly charged and tried. However, no role was attributed to accused no.2 and therefore the learned trial Court acquitted him of the charges under Section 307 r/w 34 of I.P.C. and the appellant- accused alone was held guilty. 6. Above incident was immediately reported by PW-2 Shaikh Chhottu to the Police of Turbhe Police Station. The Police immediately rushed to the spot and removed both the injured to the Sterling Hospital, Vashi, where both the victims were examined and admitted as indoor patient. Dr. Sitaram Prasad (PW-6) examined both the injured- Jabbar (PW-1) and Ismail (PW-2) who were found to have single stab injury each in their abdomen as mentioned in the medical certificate Exh.23 in respect of Jabbar as “stab wound CLW ragged 3 ½ “ to 1“ peritoneum deep with intestine popping out in left iliac fossa region” and Ex.22 in respect of Ismail-“stab wound 3 apeal494-95.sxw CLW ragged 3 “ to 1 “ peritoneum deep with intestine popping out in left iliac fossa region”. . Thus, it is seen that both the victims have sustained one stab injury each. 7. On the information of PW-2 Shaikh Chhottu, F.I.R. (Exh. 92) was registered under Section 307 read with 34 of I.P.C. vide C.R. No. I-318/90 on 23.10.1990. PSI Kadam proceeded with further examination. He could not be examined since dead. According to the prosecution, PSI Kadam recorded spot Panchnama (Exh.20) and took charge of clothes of both the injured which were collected from the Hospital under Panchanama Exh.21. Statement of Jabbar Shaikh (PW-1) was recorded on 25/10/1990 in the presence of Dr. Sitaram Prasad (PW-6) as he was then serious. The accused came to be arrested and while in police custody, pursuant to the disclosure made by accused No.1 a knife came to be recovered and seized under Panchanama Exh.72. Statement of the witnesses were also recorded. 8. It is not disputed that PW-8 Ismial was admitted in Sterling Hospital from 23/10/1990 to 2/11/1990. He got discharge certificate Exh. 24 and PW-1 Jabbar was admitted in the Hospital from 23/10/1990 to 12/11/1990 and his discharge certificate is proved on record at Exh.28. From the evidence of Dr. Sitaram Prasad (PW-6) and the medical papers, it is seen that both the victims had 4 apeal494-95.sxw sustained serious injury, endangering to their life. Therefore, the charge sheet was filed under Section 307 read with 34 of I.P.C. and the case was committed to the Court of Sessions. 9. During the trial, prosecution examined as many as 10 witnesses in order to bring home the charge. Statement of the accused was also recorded under Section 313 of the Criminal Procedure Code. Except denial, there is no specific defence taken by the accused. The prosecution case is mostly rests on the direct evidence of the victim Jabbar Shaikh (PW-1) and Ismail Shaikh (PW-8). Both of them were knowing the accused and identified him as assailant. Their evidence is also corroborated by the medical evidence. Therefore, the prosecution relied on the evidence recorded during trial and its appreciation by the learned trial Court. 10. I have heard the submissions of the learned counsel for the appellant in defence. In the light of the submissions made by both the sides, I have gone through the record & proceedings, relevant evidence recorded in this case so also the findings recorded in the judgment. 11. The trial Court observed that evidence of Jabbar Shaikh (PW-1) and Ismail Shaikh (PW-8)- both the injured, with regard to the assault remained unshattered and unshaken. They have 5 apeal494-95.sxw categorically and unmistakably identified the appellant accused as assailant. After going th rough the medial evidence it is seen that stab injury sustained by them is that of the knife blow and no doubt serious. It is also seen that had there been no medical aid in time, it would proved fetal, since the intestine popped out in left iliac fossa region, which was on the vital part. They were saved only because they were operated in time in a good Hospital. Thus, the necessary ingredients of Section 307 of I.P.C. are no doubt satisfied. 12. Witness Jabbar (PW-1) and Ismail (PW-8) themselves are the victims and therefore their testimony has a great value and therefore they cannot be said to be interested witnesses when their testimony is fully corroborated by the medical evidence. There is nothing on record to show that there was any reason either for the complainant in the F.I.R. or these two witnesses to falsely implicate the accused. Merely because the complainant-PW-2 Shaikh Chutttu, PW-3 Shabnurbi, PW-5 Mustafa did not support the case and they turned hostile, thereby testimony PW1 and PW-8 cannot be doubted and discarded. 13. The Trial Court also discussed the circumstantial evidence, recovery of knife, clothes etc. and was justified in relying on the testimony of these two witnesses PW-1 and PW-8 for holding the accused -appellant guilty. The findings recorded by the 6 apeal494-95.sxw Trial Court is based on the evidence on record and no perversity is found. Therefore, no interference is called for. I do not find any merit in the appeal and the appeal therefore, deserves to be dismissed. 14. Accordingly Criminal Appeal No. 494 of 1995 is dismissed. Impugned judgement and order of conviction and sentence of the appellant-original accused no.1 is hereby confirmed. 15. Appellant is on bail. He shall surrender to the bail bond. 16. Appeal is accordingly disposed of. ( N. D. DESHPANDE, J. ) 7 apeal494-95.sxw IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NO. 499 OF 1995 Abdul Kadir s/o Sgaujg Bazur R/o Hanuman Nagar Zopadpatti Turbe, Dist. Thane .. Appellant (Original Accused No.1) The State of Maharashtra .. Respondent Mr. Ashish Sawant i/by S.R.Chitnis for the Appellant Mr. S. A. Shaikh, APP for the State CORAM : N . D. DESHPANDE, J. Reserved for judgment on : 30/03/2011 Judgment pronounced on : 06 /04/2011 OPERATIVE PART OF THE JUDGEMENT 1. Criminal Appeal No. 494 of 1995 is dismissed. Impugned judgement and order of conviction and sentence of the appellant- original accused no.1 is hereby confirmed. 2. Appellant is on bail. He shall surrender to the bail bond. 3. Appeal is accordingly disposed of. ( N. D. DESHPANDE, J. ) 8