(1) CRI.APP. 141.1998 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD CRIMINAL APPEAL NO. 141 OF 1998 Mohd Kasim S/o Mohd Chhoutji, Age : 35 years, Occu.: Business, R/o Madina Nagar, Nanded APPELLANT VERSUS The State of Maharashtra (Copy to be served on APP High Court of Judicature of Bombay, Bench at Aurangabad) RESPONDENT ..... Mr. H.F. Pawar, Advocate h/f. Mr. A.H. Kapadia, Advocate for the Appellant. Mr. P.P. More, A.P.P. for the respondent/State. ..... CORAM : V.R. KINGAONKAR, J. DATED : 29TH NOVEMBER, 2010 ORAL JUDGMENT:- 1. Challenge in this appeal is to judgment rendered by learned Sessions Judge, in Sessions case no.25 of 1995. By that judgment, the appellant-Mohd. Kasim has been convicted for the offence punishable under section 307 of the Indian Penal Code and sentenced to suffer rigorous imprisonment for five years and to pay fine of Rs.3000/- in default to suffer rigorous imprisonment for six months. (2) CRI.APP. 141.1998 2. The prosecution case, to put it briefly is that on 6.6.1994 the informant Jakir went to Itwara mutton market, Nanded, in order to purchase beef. He purchased carcass from a beef vendor. He took the hide and intestinal part of the carcass to a hand- pump at the bore-well. It was around 8.45 am. when he was cleaning the hide under the flow of bore- well's water when the appellant-Kasim, who is a butcher, asked the informant-Jakir to go away because he wanted to clean the hide. The informant told him that he will not go away from the place because he was first in the queue and was cleaning the hide of the dead animal before arrival of the appellant- Kasim. Appellant-Kasim then went close to the informant-P.W. Jakir and pushed him away. By that time, the original accused nos. 2 to 4 reached there. They instigated the appellant and assisted him. The appellant immediately dealt a blow of butcher's knife on the right side waist and below left side ribs of informant P.W. Jakir. The informant was injured. He was rushed to the Police Station. Thereafter he was referred to Civil Hospital, Nanded for medical (3) CRI.APP. 141.1998 examination and treatment. The Medical Officer noticed stab wounds on his left side waist and on the right side of the chest below the ribs. On basis of the FIR lodged by the informant-P.W. Jakir vide exhibit 25, the Police carried out certain investigation. The appellant alongwith the other co- accused nos.2 to 4 came to be chargesheeted for the offence punishable under section 307 r/w. section 34 of the Indian Penal Code. 3. At the trial, the appellant pleaded not guilty to the charge framed against him. The prosecution examined in all nine (9) witnesses in support of its case. The learned Sessions Judge held that the incident of assault was duly proved. The learned Sessions Judge, however, came to the conclusion that the original accused nos. 2 to 4 did not assist the appellant in commission of the alleged offence of causing hurt to the informant-P.W. Jakir by means of the butcher's knife. Thus the original accused nos. 2 to 4 were acquitted of the alleged commission of attempt to cause death of the informant but they were held guilty for causing simple hurt to (4) CRI.APP. 141.1998 him. Therefore, they were convicted separately for offence punishable under section 323 r/w. section 34 of the Indian Penal Code and were sentenced only to pay fine of Rs.1000/- each, which they have deposited. They did not challenge their conviction and sentence. 4. Mr. Pawar learned Advocate for the appellant would submit that the appellant is framed in the criminal case due to previous enmity. He points out that the appellant and the informant are members of the same business community i.e. of butchers. He would submit that there could not be intentional assault on person of the informant to cause his death in the relevant morning and probably the incident is blown out of proportion with a view to aggravate the nature of charge. He would submit that the conviction for offence under section 307 of the Indian Penal Code is bad in law. Per contra, the learned A.P.P. supports the impugned judgment. 5. The question involved in this Appeal is whether the appellant is proved to be the assailant and caused injuries to the person of informant P.W. (5) CRI.APP. 141.1998 Jakir in the relevant morning by means of butcher's knife with intention to cause his death? 6. At the outset, it is important to mention here that the prosecution examined P.W. 4-Abdul Khalil and P.W. 2-Iqbal in order to prove the manner in which the incident occurred. Their versions purport to show that they noticed the fact that the quarrel was going on between the appellant and injured informant (P.W. Jakir) at the place of the bore-well's pump in the mutton market in the relevant morning. The version of P.W. Iqbal shows that the quarrel was transformed in the scuffle between the appellant and injured PW Jakir. He states that the appellant immediately assaulted injured P.W. Jakir by means of a butcher's knife on the waist and left side of the chest. His version further reveals that the appellant gave two blows on the left side of the chest of injured P.W. Jakir. He assisted injured P.W. Jakir. He took P.W. Jakir to the Police Station in injured condition. His version reveals that the Police shifted injured P.W. Jakir to the Civil Hospital. Similar is the version of P.W. Abdul (6) CRI.APP. 141.1998 Khalil. 7. Though the above witnesses were subjected to searching cross-examination, yet nothing of much importance could be elicited by the defence from their cross-examination. There is absolutely no substantial reason for P.W. Iqbal to frame the appellant in a false case. He had no enmity with the appellant. He admits that he did not make any attempt to snatch away the butcher's knife from possession of the appellant. He admits, no doubt, that the appellant had filed a complaint against him and others and the criminal case was pending against him. Still, however, the details of the period in which the criminal case was initiated and nature of the charges are not clear from the record. So, it is probable that the appellant filed such a private complaint case against P.W. Iqbal with a view to dissuade him from giving his deposition in the Sessions Court. 8. Apart from the version of the above two eye witnesses, the testimony of P.W.1 Jakir is consistent with the recitals of the F.I.R. (exhibit 25). He is (7) CRI.APP. 141.1998 the injured witness. It is well settled that version of an injured witness should be ordinarily accepted. The reason is that normally an injured witness is unlikely to allow the real assailant to go scoot-free and frame somebody else with any oblique intention. It is pertinent to notice that the F.I.R. (exhibit 25) was lodged without any loss of time. The promptitude in lodging of the F.I.R., therefore, would rule out the probability of any manipulation made by the injured P.W.1 Jakir with oblique intention to frame the appellant in a false case. His version clearly shows that the appellant asked him to go away from the place of the bore-well in the relevant morning. His version shows that appellant pushed him and, therefore, he had fallen down. His version reveals that he had staked his claim for the reason that he had come first at the place of bore- well and, thereafter, the appellant assaulted him by means of the butcher's knife. His version is not impaired inspite of searching cross-examination. He admits that the pen knife used by the appellant was long one and may be about 1 ft in length. Thus, the testimony of the injured P.W. Jakir is in consonance (8) CRI.APP. 141.1998 with the story narrated by him while lodging the F.I.R. (exhibit 25). 9. The prosecution evidence would show that blood stained clothes of the appellant were seized in presence of P.W. 5 Akbar Khan under a panchanama (exhibit 33). He identified the lungi and shirt of the appellant being the muddemal articles no.1 and 2. This is a supportive circumstance. It is not necessary to elaborately discuss the remaining evidence including that of P.W. 6 Mohammed Wali. 10. Now, the question is whether the offence proved against the appellant falls within the ambit of section 307 of the Indian Penal Code or not? The medical evidence does not show that the injuries were caused on any vital part of the body of P.W. Jakir. It is explicit from the record that the incident occurred at spur of moment. It is not that the appellant had been armed with the butcher's knife with intention to cause injuries to the informant- P.W. Jakir but it was in the course of his business as a butcher that the knife was with him. It appears that the appellant and informant P.W. Jakir indulged (9) CRI.APP. 141.1998 in a scuffle after initiation of verbal altercations between them. The appellant, in all probability, was annoyed due to the obstinate attitude of the injured P.W. Jakir. He could not tolerate the act of injured P.W. Jakir, who was perhaps a novice in the butcher's business being lad of about 20 years. It was by impulse that the appellant assaulted P.W. Jakir by means of a butcher's knife. Though, it is stated by P.W. 3 Dr. More that the injury no.2 found on person of P.W. Jakir is of grievous nature, yet it is not duly established that the said injury by itself in ordinary course of nature, was sufficient to cause death. It is vaguely stated however that P.W. Jakir had not been to hospital in time, he would have perhaps died. That can be said about any kind of bleeding injury of grievous nature. The medico-legal certificate (Exhibit 30) reveals that the first stab injury was found on the left hypcondrium region of the injured P.W. Jakir. It was slanted injury going in upward direction. It was found to be simple injury. The second injury was a stab injury on right side illiac fossa and was peritoniam deep. The medical evidence falls short to infer that the death (10) CRI.APP. 141.1998 would have been resulted in ordinary course of the nature if the injury no.2 would not have been treated at all. As stated earlier that was not injury on any vital part of the body. The evidence on record does not show that there was any serious enmity between injured P.W. Jakir and the appellant. 11. Considering all the relevant aspects of the matter, it will have to be said that the offence committed by the appellant would come within the ambit of section 326 of the Indian Penal Code and not under section 307 of the Indian Penal Code. 12. Having regard to the fact that since about 15 years, the sword of conviction is hanging on the head of the appellant and that the degree of the offence is rather less than the charge for which he was found guilty, it would be appropriate to reduce the substantive sentence awarded to him. Hence, the Appeal is partly allowed. The impugned judgment to the extent of conviction for offence under section 307 of the Indian Penal Code is set aside. Instead, the appellant is convicted for the offence under section 326 of the Indian Penal Code and instead of (11) CRI.APP. 141.1998 sentence of five years rigorous imprisonment, he is directed to undergo sentence of three years rigorous imprisonment and to pay fine of Rs.10,000/-(Rs.Ten Thousand) in default to suffer rigorous imprisonment for one year. Out of the fine amount of Rs.10,000/- (Rs.Ten Thousand), the amount of Rs.7000/-(Rs.Seven Thousand) be made over to the injured i.e. P.W. Jakir by way of compensation under section 357 of the Code of Criminal Procedure. The appellant shall immediately surrender before the Sessions Court to undergo further sentence which has remained after exclusion of the period of set-off and to deposit the remaining part of the fine amount. If he will not surrender before the Sessions Court within a period of fortnight, then the Arrest Warrant shall be immediately issued. The impugned order to the extent of disposal of property and grant of set-off to the appellant is maintained. Sd/- [V. R. KINGAONKAR, J.] arp