1 cri appeal 332.99 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD CRIMINAL APPEAL NO. 332 OF 1999 Shaikh Baba S/o Shaikh Anis, Age : 24 Years, Occu. : Rickshaw Driver, R/o Rajuri Ves, Beed. .. .. Appellant Versus The State of Maharashtra, (Copy to be served on Public Prosecutor, High Court of Judicature of Bombay, Bench at Aurangabad) .. .. Respondent Shri A. S. Gaikwad, Advocate h/f Shri S. M. Godsay, Advocate for the Appellant. Shri V. G. Shelke, A.P.P. for the Respondent/State. CORAM : S. S. SHINDE, J. DATE : 24TH JANUARY, 2011. JUDGMENT : . This appeal is filed by the appellant/accused challenging the judgment and order of the Sessions Judge, Beed in Sessions Case No. 20/1999 dated 02nd August, 1999. 2 cri appeal 332.99 2. Brief facts of the case are as under : The complainant Vidya Sanjay Wadmare is wife of P.W. 5 Sanjay Wadmare, serving as a staff Nurse in the Civil Hospital, Beed, while her husband P.W. 5 Sanjay Wadmare is serving in Police Department as a Police Constable and attached to Police Station, Paraly in the year 1998. 3. The alleged incident took place on 15.07.1998 at about 9.15 to 9.30 p.m. approximately at Bashirgunj, Beed, near Tara Pan Centre. On 15.07.1998 as the daughter of P.W. 3 Vidya and P.W. 5 Sanjay namely Puja was not feeling well. P.W. 3 Vidya gave a telephonic message to Sanjay Wadmare at Paraly about illness of Puja. Accordingly, P.W. 5 Sanjay came to Beed at about 5.00 p.m. on 15.07.1998. Both P.W. 3 Vidya and P.W. 5 Sanjay took Puja for necessary treatment to Dr. Tambde and returned to their house from the hospital of Dr. Tambde and took dinner at about 8.30 p.m. P.W. 5 Sanjay then informing his wife P.W. 3 Vidya, went to Tara Pan Centre from Bahirgunj area for taking betel or Pan approximately at about 9.15 p.m. and after taking betel from Tara Pan Centre, he was on way to return to his house. At that time, accused Nos. 1 and 2 attacked Sanjay Wadmare P.W. 5 with knife and gupti and gave blows to Sanjay. Accordingly, P.W. 5 3 cri appeal 332.99 Sanjay sustained several injuries on his chest, back, neck, hand and other parts of body. He raised shouts. Pappu Jogdand, Madhukar Wadmare and Vinod Dongre who were near the place of incident, immediately came there. Accused ran away from the place. Pappu Jogdand, Vinod Dongre and Madhukar Wadmare then took P.W. 5 Sanjay in auto rickshaw to Civil Hospital, Beed. Information was also given to P.W. 3 Vidya wife of Sanjay Wadmare. She also immediately came in the Civil Hospital, made enquiry with Sanjay about injuries and Sanjay disclosed that accused Nos. 1 and 2 attacked with knife and gupti on account of previous enmity and quarrel took place at the time of marriage some where in the month of November, 1997. P.W. 3 Vidya Wadmare accordingly gave information to the police, who was on duty at Civil Hospital, Beed. Doctor from the Civil Hospital who was on duty, namely Kailas Ganpatrao Dudhal, accordingly, attended P.W. 5 Sanjay Wadmare. He was accordingly admitted in the Civil Hospital as indoor patient. A call was given to a concerned Surgeon and accordingly Dr. Avinash Deshpande, P.W. 6 then came in the hospital and examined Sanjay Wadmare. Thereafter, he was operated. Sanjay was in the hospital as indoor patient till 28.07.1998. 4 cri appeal 332.99 4. On the basis of the report given by P.W. 3 Vidya Wadmare, Police Station Officer, P. S. Beed (City) accordingly registered Crime No. 250/1998 against the accused for the offence U/Sec. 307 r/w Sec. 34 of the Indian Penal Code. The investigation of the above said crime was thereafter handed over to P.W. 10 P.S.I. Fulzalke, who during the course of investigation, visited the place of incident, and prepared spot panchanama in presence of panchas which is proved at Exhibit 13. He also prepared a map as regards the place as shown by P.W. 4 Pappu Jogdand. He then during the course of investigation recorded statements of certain witnesses and arrested accused on 25.07.1998. The accused while in the custody of police made disclosure statement and showed their willingness to produce weapons. Memorandum to that effect is prepared. The accused in pursuance of the disclosure statement, then produced weapons. The same being attached by Police Sub-Inspector i. e., article Nos. 7 and 10 before the Court. The clothes which were on the person of accused Nos. 1 and 2 were also separately attached under separate panchanamas. The clothes which were on the person of injured Sanjay Wadmare, were also attached under panchanama Exh. 44. The clothes which were on the person of accused, the clothes which were on the person of injured Sanjay and weapons article 5 cri appeal 332.99 Nos. 7 and 10 were then sent to the Chemical Analyser, Aurangabad, along with the letter on 09.09.1998 along with blood samples of accused and Sanjay Wadmare. The report is accordingly received from the Chemical Analyser, Aurangabad. P.S.I. Phulzalke accordingly after completing the investigation, submitted charge sheet against the accused before the Chief Judicial Magistrate, Beed, on 16.10.1998. 5. The Chief Judicial Magistrate, Beed, by his order dated 04.01.1999 below Exh. 1 committed the case to the Court of Sessions as the offence U/Sec. 307 of the Indian Penal Code being exclusively triable by the Court of Sessions. 6. The VII Assistant Sessions Judge, Beed (Shri R. S. Kharkar) framed charge against the accused as per Exh. 5 on 28.01.1999 for the offences U/Sec. 307 r/w Sec. 34 of the Indian Penal Code. The same was read-over and explained to the accused. They pleaded not guilty to the charge and claimed to be tried. Their defence is of total denial. According to them they being falsely involved in the present case. 7. The prosecution examined as many as ten witnesses. The 6 cri appeal 332.99 Sessions Court after taking into consideration the entire evidence on record and after hearing the respective counsel by its judgment and order dated 02nd August, 1999 convicted the accused Shaikh Baba Shaikh Anis and accused No. 2 Sayyad Azim Sayyad Naim for the offence punishable U/Sec. 324 r/w Sec. 34 of the Indian Penal Code and they are sentences to suffer rigorous imprisonment for six months and to pay fine of Rs. 500/- each and in default of payment of fine to suffer further R. I. for one month. The Court has also given set off U/Sec. 428 of the Criminal Procedure Code, as the accused were arrested on 25.07.1998 and released on bail on 13.10.1998. 8. Learned counsel appearing for the appellant submitted that, the evidence of eye witnesses cannot be believed. There are material contradictions in their version. The counsel also submitted that, the victim is police constable and, therefore, false case is filed against the appellant. It is further submitted that, to convincingly prove the prosecution case against the appellant, there is no proper recovery of the weapon from the appellant. The counsel invited my attention to the para 18 of the impugned judgment and submitted that, the learned Judge himself has observed that, there is no proper recovery of Article Nos. 7 and 10 7 cri appeal 332.99 at the instance of the accused. Therefore, the counsel appearing for the appellant would submit that, the appeal deserves to be allowed. 9. The learned Additional Public Prosecutor appearing for the respondent/State submitted that, the Sessions Court taking into consideration the entire evidence on record and evidence of the prosecution witnesses has convicted the accused/appellant. Therefore, no interference is warranted in this appeal. 10. With the assistance of the learned counsel appearing for the appellant and learned Additional Public Prosecutor appearing for the State I have carefully perused the record and proceedings. I have also gone through the evidence of the eye witnesses and also medical evidence and I am of the opinion that, there is direct evidence in the matter corroborated by the medical evidence. Therefore, the Sessions Court has rightly convicted the accused/appellant. The evidence of P.W. 1 Pappu Jogdand and P.W. 5 Sanjay Wadmare supports the prosecution story. The Trial Court has discussed the evidence of said witnesses from para 13 to 17. P.W. 4 Pappu Jogdand and P.W. 5 Sanjay Wadmare in their evidence have specifically stated about the 8 cri appeal 332.99 manner in which incident had taken place and assault by the appellant along with co-accused, the weapons used by them. The evidence of P.W. 5 Sanjay Wadmare and P.W. 4 Pappu Jogdand and Vidya Wadmare is corroborated by the medical evidence. The evidence of P.W. 6 Dr. Avinash Deshpande and P.W. 8 Dr. Kailash Dudhal shows that, Sanjay Wadmare (victim) was immediately admitted in the hospital. Dr. Kailash Dudhal in his evidence at Exhibit 32 stated that, on 15.07.1998 he was on duty as Medical Officer. At about 9.40 p.m. Sanjay was brought to the hospital. He examined and found six injuries on his person i. e. incised wound on left para spinal region, incised wound on right gluteal region, incised wound on left axilla, incised wound on anterior aspect of chest, incised wound on left arm posterior aspect and incised wound on left ear. 11. The Medical Officer has opined that, out of these six injuries, the injury at Sr. No. 3, 4 and 6 are grievous in nature. He has also opined that, those injuries are caused within 24 hours prior to his admission in the hospital. According to him, the injuries are possible with sharp weapon. The evidence of this witness has been categorically discussed by the Sessions Court. Therefore, presence of the Pappu Jogdand at the spot is 9 cri appeal 332.99 established by the prosecution. It has also came on record that, Pappu Jogdand and Sanjay Wadmare were knowing the appellant/accused even prior to the incident as this aspect is sufficiently clear from the evidence as on account of previous enmity. It is true that, in para 18 the learned Sessions Court has expressed displeasure for not having proper recovery of the weapon and also about the manner in which prosecution has handled the case to sent the sample to the Chemical Analyser and procedure followed therein. However, the evidence of the eye witness which is fully corroborated by the medical evidence cannot be brushed aside. The eye witnesses have seen the accused appellant at spot assaulting the Sanjay Wadmare. The Sanjay Wadmare is police constable and there is no reason to falsely implicate the appellant and co-accused by the Sanjay Wadmare. The evidence of the wife of the Sanjay Wadmare shows that, Sanjay Wadmare immediately narrated the incident and disclosed the name of the accused to P.W. 3 wife of Sanjay Wadmare. Therefore, taking over all view of the matter, in my opinion, the Sessions Court has taken a correct and possible view. It is true that, the Sessions Court has considered the case 10 cri appeal 332.99 of offence U/Sec. 307 of the Indian Penal Code. However, in para 20 and 21, the Sessions Court has recorded that, in the facts and circumstances of the case and nature of injuries sustained by Sanjay Wadmare and taking into consideration other facts, more particularly requisite intention to commit offence, the Trial Court held that, the requisite intention to commit offence U/Sec. 307 of the Indian Penal Code cannot be gathered. Therefore, the Trial Court recorded the findings that the accused in furtherance of their common intention caused voluntarily hurt with a sharp cutting weapon and, therefore, accused committed an offence U/Sec. 324 r/w Sec. 34 of the Indian Penal Code. Therefore, taking into consideration over all circumstances and evidence in the matter, I do not find any reason to interfere in the impugned judgment and order passed by the Sessions Judge, Beed, dated 02nd August, 1999 in Sessions Case No. 20/1999. 12. Therefore, the impugned judgment and order is confirmed. However, taking into consideration the fact that, the appellant is on bail for long period of 13 years and he has not misused the bail during this period. The Sessions Court has also recorded 11 cri appeal 332.99 that, there was no intention to commit such offence U/Sec. 307 r/w Sec. 34 of the I. P. Code. The counsel for the appellant makes statement that, this is the only alleged offence in which the appellant is shown as accused. In the facts and circumstances of this case, the end of justice would meet, if the sentence is reduced to already undergone period. The appellant accused is convicted U/Sec. 324 r/w Sec. 34 of I. P. Code. Therefore, taking over all view of the matter, the conviction of the appellant recorded by the Trial Court U/Sec. 324 r/w Sec. 34 is maintained, however, the period of sentence is reduced to already undergone by the accused/appellant. There shall be no order as regards the payment of fine amount and the order of Trial Court in respect of fine is maintained. The accused need not be sent to the jail. The Sessions Court has recorded in para 2 of the operative part of the order that the accused appellant was arrested on 25.07.1998 and released on bail on 13.10.1998 and he was in jail for eighty days during the pendency of trial. [ S. S. SHINDE, J.] bsb/Jan. 11