((-1-)) IN THE HIGH COURT OF JUDICATURE AT BOMBAY IN THE HIGH COURT OF JUDICATURE AT BOMBAY IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION CIVIL APPELLATE JURISDICTION CIVIL APPELLATE JURISDICTION CRIMINAL APPEAL NO.657 OF 1998 1. Ajay Kumar Biswal 2. Ismail Ibrahim Shaikh Appellants versus The State of Maharashtra and another Respondents Shri Subhash Jha for appellants. Shri K.V.Saste, APP for State. CORAM : S.C.DHARMADHIKARI, J. CORAM : S.C.DHARMADHIKARI, J. CORAM : S.C.DHARMADHIKARI, J. DATE OF RESERVING THE JUDGEMENT : 20.12.2005 DATE OF RESERVING THE JUDGEMENT : 20.12.2005 DATE OF RESERVING THE JUDGEMENT : 20.12.2005 DATE OF PRONOUNCING THE JUDGEMENT : 28.03.2006 DATE OF PRONOUNCING THE JUDGEMENT : 28.03.2006 DATE OF PRONOUNCING THE JUDGEMENT : 28.03.2006 JUDGEMENT :- 1. This appeal is by the accused in Sessions Case No.785 of 1986. The accused have been convicted by the learned Additional Sessions Judge, Mumbai for offences punishable under section 307 read with 34 of the Indian Penal Code, 1860. They are directed to suffer rigorous imprisonment for a period of five years and to ((-2-)) pay Rs.5,000/- as fine. In default, they were to suffer rigorous imprisonment of 15 months each. 2. The prosecution case is as under. The complainant Bajirao and the appellants are in employment of Galas situate in an industrial shed at Lower Parel, Mumbai. The industrial shed is named as Shah and Nahar Industrial Estate. The incident occurred in the compound of Shah and Nahar Industrial Estate. The time of the incident is 1’o clock in the afternoon. It is alleged that the complainant had gone to adjoining industrial estate in connection with his duty. He returned to the place of his employment located on fourth floor in the building of Shah and Nahar Industrial Estate. Accused Ajay (A-1) went to the complainant and called him down stairs. The complainant accompanied Ajay. When both of them were on the staircase between 2nd and 3rd floor other accused Ismail (A-2) joined them. It is alleged that before complainant Bajirao realised anything, both accused bodily lifted him and threw him to the ground. The complainant Bajirao sustained number of injuries on his person. All of them were caused to the right part of his body. Prosecution Witness No.6 Tejuddin removed injured ((-3-)) Bajirao to the hospital. He reached K.E.M. Hospital at about 1.45 in the noon. 3. Prosecution Witness no.3 Shashikant Pawar, a Constable attached to Bhoiwada Police Station, was at the relevant time present at K.E.M. Hospital. Realising that it was a Medico- Legal case, P.W.3 made preliminary inquiry with Bajirao. During the course of that inquiry Bajirao told P.W.3 Pawar the manner in which the injuries were sustained by him. He told Constable Pawar that two persons namely the accused herein had bodily lifted him and he was thrown from the third floor of the building and injuries sustained by PW-1 Bajirao were by the acts of accused-appellants. 4. The Medical Officer attached to K.E.M. Hospital admitted Bajirao in Ward No.6. At about same time, PW-7 Pednekar who was then attached as Police Inspector at N.M.Joshi Marg Police Station received a Wireless message from the Control Room to attend to a patient admitted in the K.E.M. Hospital. He appears to have deputed PSI Shirke and some other Constable to attend the patient. It is alleged that when Shirke reached K.E.M. Hospital at about 2.45 in the noon, the Doctor ((-4-)) restrained him from recording the statement of Bajirao. The Doctor found that the injured Bajirao was in drowsy condition. PSI Shirke obtained certificate of Medical Officer at about 1.45 in the noon. Condition of the injured remained unchanged till about 6.45 p.m. in the evening. At this time, the Medical Officer permitted PSI Shirke to record statement of the injured. PSI Shirke recorded the statement of the injured Bajirao in question and answer form. That time P.W.1 Bajirao has reiterated that it was the accused Ajay and Ismail who had thrown him from the staircase of 2nd and 3rd floor of the building of Shah and Nahar Industrial Estate. He has also disclosed the motive for commission of the said offence. According to him the accused Ajay and Ismail had an affair with two lady employees by name Khairu and Ayashabi, that the accused suspected that it was the complainant Bajirao who had disclosed the said affair to the Manager. 5. It is further alleged that while the complainant was under interrogation, both the accused persons were shown to him. He had identified both of them in the presence of PSI Shirke and Medical Officer Shri Maskar. The ((-5-)) latter had made an endorsement in the complaint that Bajirao was fully conscious and that the F.I.R. was recorded before Doctor Maskar. As such at about 6.48 p.m. on 2.8.85 the offence u/s 307 of the Indian Penal Code was registered. The accused were arrested. Earlier P.W.7 Pednekar had visited the spot and had drawn the panchanama. He did not find any incriminating article at the spot. The clothes on the person of the injured were seized under the panchanama. They were sent to the C.A. for examination and the report of the C.A. was obtained. After completing the usual investigation the accused came to be chargesheeted. It is therefore,alleged that both accused in furtherance of their common intention had attempted to commit murder of P.W.1 Bajirao and in accomplishing the said object P.W.1 Bajirao was bodily lifted from the staircase of 2nd and 3rd floor and was thrown on the ground floor. 6. The learned Metropolitan Magistrate had committed the case to the Court of Sessions. The charge was read over and explained to both the accused. Both of them pleaded ‘not guilty’ and claim to be tried. At the outset the defence of the accused is that of a total denial. The oral ((-6-)) evidence adduced by the prosecution, comprises of deposition of seven witnesses. The main witness is the complainant Bajirao. He was examined under Exh.8. The F.I.R. is at Exh.9. The person who had admitted injured Bajirao to K.E.M. Hospital by name Tezuddin is examined as P.W.6 at Exh.21. A co-employee who works along with the accused and Bajirao by name Shaikh Ibrahim was examined as P.W.2 at Exh.10. He is a formal witness. He testifies that he knew both, the accused and complainant Bajirao, from one year prior to the incident. He also adds that he does not know how the incident had occurred. 7. The spot panch by name Dudhnath was examined at Exh.14. He merely identifies his signature on that panchanama. He is equally formal witness. The Medical Officer Doctor Shenoy was examined as P.W.5 at Exh.18. He has deposed that all the injuries, 9 in number could have cumulatively endangered the life of the complainant and he could have died. There were number of fracture injuries. Besides there was deformity noticed on the mandable with loss of left lower incisor and over right side xygoma, which was probably a fracture. He adds that Bajirao was an indoor patient from 2.8.85 to 7.11.85. The prosecution ((-7-)) has then examined two police witnesses. A constable posted in K.E.M. Hospital by name Pawar is examined as P.W.3 at Exh.12. The I.O. A.C.P.Pednekar was examined at Exh.22. The latter appears to have took over the investigation from PSI Shirke who had earlier recorded the statement on P.W.1 Bajirao at Exh.9. After necessary investigation was complete and charges were framed by the Sessions Court, evidence was recorded. 8. The prosecution witness no.1 Bajirao has deposed that in 1985 he was serving in Lower Parel. He was serving in Cliff Company as Overlock Operator. The premises of the said company are situate in Sainath Industries. They were in Gala Nos.409 and 410. He mentions that there is Adhyaru Industrial Estate near the premises of Cliff Company. He thereafter deposes that Shah and Nahar Industrial Estate is also situate at Lower Parel. 9. He deposes that there are 30 workers employed in Cliff Company. Some of them are ladies. He states that the accused are serving as Labourers in Cliff Company. He names the owner of the company as one Ahamad Baiganwala. He gives the ((-8-)) name of Manager as well. The date of incident is 2nd August 1985. He says that on that date he had reported to work. He had gone to Adhyaru Company (Industrial Estate) for repairing defective goods. He states that he returned to Sainath Industries. At that time it was 1’0 clock afternoon. He states that the accused Ajay called him out of the company. He, therefore, went out. Accused Ajay asked him to come down. Accused Ajay took him between 2nd and 3rd floors on the staircase. That time accused Ajay was alone. When he enquired with Ajay as to what happened, at that time, accused no.2 Ismail came near them. 10. It is his version that before he could realise anything, both accused bodily lifted him and threw him from the staircase to the ground floor. He fell on his right side. He states that there was a fracture injury to the right leg and on the cheek. He says that he was taken to K.E.M. Hospital and admitted therein. He states that after the statement was recorded by Inquiry Officer, he was shown the accused at the Hospital on 2nd August 1985 and he identified both in presence of the Inquiry Officer. It is based upon his statement that the First Information ((-9-)) Report was prepared. He states that he was under treatment for three and half months at K.E.M. Hospital. He was unable to move out because of the fracture injuries. He says that his entire body up to the neck was under plaster and he was not in a position to do day to day work even after discharge from the Hospital. 11. In paragraph no.6 of his deposition this is what he states :- "When accused Ajay called me out that time I was working on the 4th floor. I went to the 3rd floor to see accused Ajay. However I was actually thrown from the staircase in between the 2nd and 3rd floor by both the accused. The incident occurred due to an affair between accused persons and Asha and Khairu. I do not know the full name of Asha. Both the accused persons had suspected that I had disclosed the said affair to the Manager Mehendi, and therefore they had attacked me. Both the workers by name Asha and Khairu were in the employment in the company. At the time of the incident I was wearing pant and the shirt. They were seized by the police during the course of the investigation. I will be able to identify the clothes if they are shown to me." 12. In his cross examination PW-1 has stated that previously he was working in Shah and Nahar Industrial Estate. He then states that the company was not maintaining muster book. The ((-10-)) company does not have any record showing the years that he served and worked therein. He says that the company will not able to say anything about other workers. He further states that on the date of incident while returning to Shah and Nahar Company one Govind Master was with him. He reached Shah and Nahar Company at about 12.45 in the noon and was there for 15 to 40 minutes. He states that other workers were there in the Industrial Estate (Shah and Nahar) when he and Govind reached there. He is not in a position to state as to how many workers were there. He says that he was there in Shah and Nahar Company till about 1.00 in the afternoon. 13. In his cross examination he states that he did not tell Govind Master, before leaving the room, that he was called by accused Ajay. He states that Ajay waited at his place of work for about two minutes. He did not ask Ajay as to why he wanted him to come outside. As soon as PW-1 and Ajay reached the staircase of 2nd and 3rd floors, other accused Ismail came and according to PW-1, there was no talk or conversation between him and the accused persons. He states that distance between two Industrial Estates namely Shah and Nahar and Adhyaru is about 5 ((-11-)) minutes walking distance. However, his statement in the cross examination is "I do not remember how many floors are there to the building of Shah and Nahar Industrial Estate. I also cannot say how many floors are there to the building of Adhyaru Industrial Estate. I also do not know how many Galas are there in each of those Industrial Estate." In paragraph no.8 of his deposition, PW-1 states that there are number of Galas in Shah and Nahar Industrial Estate. He states that there are number of visitors and passers-by to the industrial area. He volunteers and states that the place from where he was thrown on the ground floor is outside and isolated. When asked as to what does he mean by the word "isolated" he states that people are in a position to see a person standing on the staircase between 2nd and 3rd floors. In his cross examination he further states as under:- "So also a person standing in the compound of that Industrial Estate is in position to see the staircase between 2nd and 3rd floor. I could not raise the shout when the accused had bodily lifted me. In my first statement I had stated to the I.O. that the accused Ajay had come to the place of my work and he had called me to come down. I had also stated that I had gone to Adhyaru company for checking the defects of the goods. I had also stated that I had worked in Shah ((-12-)) and Nahar company till about 1-00 in the noon and thereafter the accused Ajay came to call me. I had also stated that the accused Ajay took me on the staircase between the 2nd and 3rd floor. I had stated to the police that I had asked the accused Ajay as to what happened and later on the accused Ismail came to that staircase. These facts are not mentioned in my first statement. I cannot assign any reason why they are not mentioned." In paras 11 and 12 of his deposition that is what he states. 11. I was conscious when I fell down on the ground floor. I was in position to speak and to move my hands. I cannot give the time when the first statement was recorded on 2nd August, 1985. I was taken to the hospital immediately after I had sustained the injuries. I cannot say at how many places I had signed the papers on the request made by the police. I however remember that besides the F.I.R. and the earlier first statement I had not signed any other papers. After the police had recorded my earlier statement the subsequent statement was recorded after about 2 days. I do not remember if the I.O. had recorded any other statement. I do not remember if I had repeated the same contents in my subsequent statement dtd.4.2.85. I had stated in my subsequent statement dtd. 4.2.85 that I was not in position to speak on the earlier occasion on 2.8.85 because of the injuries and therefore the exhaustive facts were not narrated on 2.8.85. That fact is not mentioned in the F.I.R. dtd. 4.8.85. I cannot assign any reason why it is not mentioned. I had stated to the I.O. the reasons as to why the accused had committed the alleged offence. In the complaint at Exh. the said fact is not mentioned, and I cannot assign any reason ((-13-)) why it is not mentioned. 12. The height of the wall may be about 3 1/2 ft. from the wall from where I was thrown to the ground floor. It is not true that the height of that wall is less than 3 ft. It is not true that without any justifiable reason while the accused persons were standing on the stair case between 2nd and 3rd floor, I had picked up a quarrel with them or that there was scuffle between me and both the accused. I did not know the affair of the accused persons with those two girls prior to the date of the incident. It is not true that I had picked up the quarrel with the accused over those two girls as I was treating them as my sisters. It is not true that in the scuffle between me and the accused I had lost the balance and fell from that wall to the ground floor. It is not true that I am taking the names of both the accused because of the previous enimity. It is not true that the accused Ajay had not called me from the place of my work. It is not true that I am deposing false that both the accused had bodily lifted me and had thrown me to the ground floor from the stair case of the 2nd and 3rd floor. It is not true that I am deposing falsely against the accused." 14. I have referred to the deposition of PW-1 in detail because the learned Judge proceeds on the basis that it is only the solitary testimony of PW-1 who is a victim as well as a witness which is relevant in this case. The learned Judge is aware of the principle that before his testimony is accepted and acted upon, the same is liable to be scrutinised with all care and caution. If such testimony inspires confidence that the Court ((-14-)) can accept the same, is the finding of the learned Judge. 15. Shri Jha - learned counsel appearing for the appellants assails the findings and conclusions of learned Trial Judge. He submits that the Trial Judge was in obvious error in accepting the testimony of PW-1. 16. He submits that the learned Judge has not appreciated Section 307 of the Penal Code in its true letter and spirit. He submits that the ingredients thereof namely "intention", "knowledge" and "circumstances" have to be specified before it can be said that a person is guilty of the offence thereunder. He submits that there is no evidence about knowledge. It is being inferred from the circumstances. The prosecution has not led any evidence about the height from which the victim/complainant (PW-1) was allegedly thrown. He submits that apart from no intention, no knowledge and no circumstances, it is clear that neither are any co-workers examined nor the women employees who are allegedly the cause of the incident. In the submission of Shri Jha if the cause of the incident was the alleged illicit relations or the ((-15-)) harassment to the women employees which agitated PW-1, then their non-examination and in any event no explanation in that behalf being forth coming, are vital factors and learned Judge could not have ignored them. An adverse inference will have to be drawn as it is well settled that had these witnesses been summoned and examined, they would have deposed against the case of prosecution. He relies upon several decisions of Supreme Court laying down above principle. 17. He submits that the prosecution’s version that no statement could be recorded of the PW-1 till 6.45 p.m. on the date of incident, is not substantiated. He submits that PW-1 was in a position to speak but statement is not recorded. 18. That apart, according to Shri Jha, if such an incident occurs at the place of employment, it is inconceivable that employees and passers-by would not notice the same. It is indeed surprising that nobody has seen the appellants or at least the accused Ajay going towards PW-1 and talking to him or lifting him allegedly along with other accused Ismail. He submits that it is inconceivable that the appellants would go and have lunch after the incident and their not ((-16-)) leaving the premises is also of some relevance. The conduct of PW-1 in not raising an alarm and only mentioning the incident as some sort of altercation or quarrel or fight, casts serious doubt on the prosecution case. He submits that if the entire deposition is perused it is clear that PW-1 admits that a person can fall by loosing balance and it is probable that such a thing could happen. He invites my attention to the statement recorded by Bhoiwada Police Station wherein PW-1 has stated that there was fight between appellants and PW-1. There is a deviation from the version and therefore, the story is totally unreliable. 19. For all these reasons Shri Jha submits that the appeal be allowed by setting aside the judgement and order of conviction and sentence. 20. Shri Saste - learned APP supports the impugned judgement and contends that the alleged loop holes and infirmities emphasised by Shri Jha cannot have any bearing inasmuch as the incident is admitted. He, therefore, submits that the appeal deserves to be dismissed. 21. In view of the rival submissions the ((-17-)) following points arise for my determination :- a) Whether the judgement and order of the learned Additional Sessions Judge convicting the appellants for offence punishable under section 307 read with 34 of the IPC is valid, legal and proper? b) If the answer to question is in the negative, then whether Judgement and Order should be set aside? 22. My finding on the above mentioned question (a) is that the judgement and order of conviction and sentence is not sustainable and, therefore, requires to be set aside. The reasons for the above conclusion are set out hereinbelow. 23. Section 307 of the Penal Code reads as under:- "307. Attempt to Murder :- Whoever does any act with such intention or knowledge, and under such circumstances that, if he, by that act, caused death, he would be guilty of murder, shall be punished with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine; and if ((-18-)) hurt is caused to any person by such act, the offender shall be liable either to imprisonment for life, or to such punishment as is hereinbefore mentioned. Attempts by life convicts :- When any person offending under this section is under sentence of imprisonment for life, he may, if hurt is caused, be punished with death." A perusal of this provision indicates that the ingredients thereof are that the Act must be with such intention or knowledge and under such circumstances that if by that act person doing it causes death, then he would be guilty of murder and if hurt is caused by the said act, the offender shall be liable either to imprisonment for life or to such punishment as is mentioned in the earlier part of the provision. 24. In the present case the complainant Bajirao alleges that he was serving in Lower Parel in Cliff Company as an Over Lock Operator. He describes the location of the premises of this company. He says that they are situate in Sainath Industry. That is according to him Gala Nos.409 and 410. Then he states that there is another Industrial Estate near the said Industrial Estate. The Industrial Estate Shah and Nahar is also situate in Lower Parel. He ((-19-)) states that there are 30 labourers employed in his company namely the company he is serving i.e. Cliff Company. He states that the appellants are co-workers. As far as incident of 2nd August 1985 is concerned, he states that he had gone to another company for repairing defective goods and returned to Sainath Industries premises at about 1’o clock in the noon. It is thereafter that the accused Ajay called him outside the company. Then he states that accused Ajay asked him to come down. It is stated by him that accused Ajay took him between